Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters are subject to the following conditions: (a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date: (i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined for purposes of Section 15c3-1(c)(2)(vi)(F) under the Exchange Act; and (ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus as of the date of this Agreement that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Offered Shares on the terms and in the manner contemplated in the Time of Sale Prospectus. (b) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened. (c) The Underwriters shall have received on the Closing Date an opinion and statement of Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP, outside counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit A hereto. (d) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxxx P.C, Xxxxxxxx Islands counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit B hereto. (e) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxx LLP, special U.S. maritime environmental counsel and Liberian counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit C hereto. (f) The Underwriters shall have received on the Closing Date an opinion and statement of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel for the Underwriters, dated the Closing Date, with respect to such matters as may be requested by the Underwriters. (g) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Deloitte & Touche LLP, independent public accountants, 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, the Time of Sale Prospectus and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof. (h) The Offered Shares shall have been approved for listing on the NYSE, and satisfactory evidence thereof shall have been provided to you. (i) FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements. (j) The “lock-up” agreements, each substantially in the form of Exhibit D hereto, between you and Genco and each officer and director of the Company relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date. The several obligations of the Underwriters to purchase Optional Shares hereunder are subject to the delivery to you on the applicable Option Closing Date of such documents as you may reasonably request with respect to the good standing of the Company, the due authorization and issuance of the Optional Shares to be sold on such Option Closing Date and other matters related to the issuance of such Optional Shares.
Appears in 4 contracts
Samples: Underwriting Agreement (Baltic Trading LTD), Underwriting Agreement (Baltic Trading LTD), Underwriting Agreement (Baltic Trading LTD)
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Company or any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined for purposes in Section 3(a)(62) of Section 15c3-1(c)(2)(vi)(F) under the Exchange Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus as of the date of this Agreement that, in your reasonable judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Offered Shares Securities on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct in all material respects (or true and correct in the case of representations and warranties that are qualified by materiality or Material Adverse Effect) as of the Closing Date and that the Company has complied in all material respects with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an opinion and statement of Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx Proskauer Rose LLP, outside counsel for the Company, dated the Closing Date, to substantially in the effect form set forth in on Exhibit A hereto.A.
(d) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx Xxxxx Xxxx & Xxxxxxx P.C, Xxxxxxxx Islands counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit B hereto.
(e) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxx LLP, special U.S. maritime environmental counsel and Liberian counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit C hereto.
(f) The Underwriters shall have received on the Closing Date an opinion and statement of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel for the Underwriters, dated the Closing Date, with respect Date in form and substance satisfactory to such matters as may be requested by the Underwriters. The opinion of counsel for the Company described in Section 5(c) above shall be addressed to the Underwriters at the request of the Company and shall so state therein.
(ge) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Deloitte & Touche KPMG LLP, independent public accountants, 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, the Time of Sale Prospectus and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
(h) The Offered Shares shall have been approved for listing on the NYSE, and satisfactory evidence thereof shall have been provided to you.
(i) FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(j) The “lock-up” agreements, each substantially in the form of Exhibit D hereto, between you and Genco and each officer and director of the Company relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date. The several obligations of the Underwriters to purchase Optional Shares hereunder are subject to the delivery to you on the applicable Option Closing Date of such documents as you may reasonably request with respect to the good standing of the Company, the due authorization and issuance of the Optional Shares to be sold on such Option Closing Date and other matters related to the issuance of such Optional Shares.
Appears in 3 contracts
Samples: Underwriting Agreement (Celgene Corp /De/), Underwriting Agreement (Celgene Corp /De/), Underwriting Agreement (Celgene Corp /De/)
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters to purchase Underwritten Securities pursuant to the Terms Agreement are subject to the following conditions:
(a) Subsequent to the execution and delivery of this the Terms Agreement and prior to the Closing Date:
(i) there shall not have occurred occurred, since the date of the Terms Agreement, any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Company or any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined for purposes in Section 3(a)(62) of Section 15c3-1(c)(2)(vi)(F) under the Exchange Act; and
(ii) there shall not have occurred occurred, since the date of the Terms Agreement, any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus as of the date of this Agreement that, in your the Underwriters’ judgment, is material and adverse and that makes it, in your the Underwriters’ judgment, impracticable to market proceed with the Offered Shares offering or delivery of the Securities on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an opinion and statement of Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLPletter of, outside counsel for the Company, dated the Closing Date, to substantially in the effect set forth in Exhibit A heretoforms contemplated by the Terms Agreement.
(d) The Underwriters Company shall have received on requested and caused the Closing Date an opinion General Counsel of Xxxxxx & Xxxxxxx P.C, Xxxxxxxx Islands counsel for the CompanyCompany to furnish the Representatives his opinion, dated the Closing Date, to substantially in the effect set forth in Exhibit B heretoforms contemplated by the Terms Agreement.
(e) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxx LLP, special U.S. maritime environmental counsel and Liberian counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit C hereto.
(f) The Underwriters shall have received on the Closing Date an opinion and statement of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel for the Underwriters, dated the Closing Date, with respect to such the issuance and sale of the Underwritten Securities, the Time of Sale Prospectus and the Prospectus (as amended or supplemented at the Closing Date) and other related matters as the Representatives may be requested by reasonably require, and the UnderwritersCompany shall have furnished to such counsel such documents as they request for the purpose of enabling it to pass upon such matters.
(gf) The Underwriters shall have received, on each the date of the date hereof Terms Agreement and the Closing Date, a letter letter, dated the date hereof of the Terms Agreement or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Deloitte & Touche LLP, the independent public accountantsaccountants to the Company, 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, the Time of Sale Prospectus and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
(h) The Offered Shares shall have been approved for listing on the NYSE, and satisfactory evidence thereof shall have been provided to you.
(i) FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangementsTerms Agreement.
(j) The “lock-up” agreements, each substantially in the form of Exhibit D hereto, between you and Genco and each officer and director of the Company relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date. The several obligations of the Underwriters to purchase Optional Shares hereunder are subject to the delivery to you on the applicable Option Closing Date of such documents as you may reasonably request with respect to the good standing of the Company, the due authorization and issuance of the Optional Shares to be sold on such Option Closing Date and other matters related to the issuance of such Optional Shares.
Appears in 3 contracts
Samples: Terms Agreement (Interpublic Group of Companies, Inc.), Terms Agreement (Interpublic Group of Companies, Inc.), Terms Agreement (Interpublic Group of Companies, Inc.)
Conditions to the Underwriters’ Obligations. The obligations of the Company to sell the Shares to the Underwriters and the several obligations of the Underwriters to purchase and pay for the Shares on the Closing Date are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
, (i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate no order suspending the direction effectiveness of the possible changeRegistration Statement shall be in effect, in the rating accorded any of the securities of the Company and no proceeding for such purpose or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined for purposes of pursuant to Section 15c3-1(c)(2)(vi)(F) 8A under the Exchange Act; and
Securities Act shall be pending before or, to the Company’s knowledge, threatened by the Commission and (ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus as provided to the prospective purchasers of the date of this Agreement Shares that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Offered Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i5(a) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an opinion and statement negative assurance letter of Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx Gxxxxxx Procter LLP, outside counsel for the Company, in form and substance satisfactory to you, dated the Closing Date, . Such opinion and negative assurance letter shall be rendered to the effect set forth in Exhibit A heretoUnderwriters at the request of the Company and shall so state therein.
(d) The Underwriters shall have received on the Closing Date an opinion and negative assurance letter of Xxxxxx Dxxxx Xxxx & Xxxxxxx P.C, Xxxxxxxx Islands counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit B hereto.
(e) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxx LLP, special U.S. maritime environmental counsel and Liberian counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit C hereto.
(f) The Underwriters shall have received on the Closing Date an opinion and statement of Xxxxxx, Xxxxx & Xxxxxxx Wxxxxxxx LLP, counsel for the Underwriters, dated the Closing Date, with respect in form and substance satisfactory to such matters as may be requested by the Underwritersyou.
(ge) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Deloitte & Touche KPMG LLP, independent public accountants, 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, the Time of Sale Prospectus and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
(h) The Offered Shares shall have been approved for listing on the NYSE, and satisfactory evidence thereof shall have been provided to you.
(i) FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(jf) The “lock-up” agreements, each substantially in the form of Exhibit D A hereto, between you and Genco certain officers and each officer and director directors of the Company relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date. .
(g) The several obligations of the Underwriters to purchase Optional Additional Shares hereunder are subject to the delivery to you on the applicable Option Closing Date of the following:
(i) a certificate, dated the Option Closing Date and signed by an executive officer of the Company, confirming that the certificate delivered on the Closing Date pursuant to Section 5(b) hereof remains true and correct as of such Option Closing Date;
(ii) an opinion and negative assurance letter of Gxxxxxx Procter LLP, outside counsel for the Company, dated the Option Closing Date, relating to the Additional Shares to be purchased on such Option Closing Date and otherwise to the same effect as the opinion and negative assurance letter required by Section 5(c) hereof;
(iii) an opinion and negative assurance letter of Dxxxx Xxxx & Wxxxxxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Additional Shares to be purchased on such Option Closing Date and otherwise to the same effect as the opinion and negative assurance letter required by Section 5(d) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Underwriters, from KPMG LLP, independent public accountants, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 5(e) hereof; provided that the letter delivered on the Option Closing Date shall use a “cut-off date” not earlier than two business days prior to such Option Closing Date; and
(v) such other documents as you may reasonably request with respect to the good standing of the Company, the due authorization and issuance of the Optional Additional Shares to be sold on such Option Closing Date and other matters related to the issuance of such Optional Additional Shares.
Appears in 3 contracts
Samples: Underwriting Agreement (Plug Power Inc), Underwriting Agreement (Plug Power Inc), Underwriting Agreement (Plug Power Inc)
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries the debt securities of the Company by any “nationally recognized statistical rating organization,” as such term is defined for purposes in Section 3(a)(62) of Section 15c3-1(c)(2)(vi)(F) under the Exchange Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus as of the date of this Agreement that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Offered Shares Securities on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an opinion and statement of Xxxxxx Xxxxx Xxxxxxx Xxxxxxxx & Xxxxxxx LLPXxxxxx, Professional Corporation, outside counsel for the Company, dated the Closing Date, to substantially in the effect form set forth in Exhibit A hereto.A.
(d) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx Xxxxx Xxxx & Xxxxxxx P.C, Xxxxxxxx Islands counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit B hereto.
(e) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxx LLP, special U.S. maritime environmental counsel and Liberian counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit C hereto.
(f) The Underwriters shall have received on the Closing Date an opinion and statement of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel for the Underwriters, dated the Closing Date, with respect in the form and substance to such matters as may be requested agreed upon by the UnderwritersManagers and such counsel.
(ge) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance reasonably satisfactory to the Underwriters, from Deloitte Ernst & Touche Young LLP, independent public accountants, 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, the Time of Sale Prospectus and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
(h) The Offered Shares shall have been approved for listing on the NYSE, and satisfactory evidence thereof shall have been provided to you.
(i) FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(j) The “lock-up” agreements, each substantially in the form of Exhibit D hereto, between you and Genco and each officer and director of the Company relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date. The several obligations of the Underwriters to purchase Optional Shares hereunder are subject to the delivery to you on the applicable Option Closing Date of such documents as you may reasonably request with respect to the good standing of the Company, the due authorization and issuance of the Optional Shares to be sold on such Option Closing Date and other matters related to the issuance of such Optional Shares.
Appears in 3 contracts
Samples: Underwriting Agreement (Autodesk Inc), Underwriting Agreement (Autodesk Inc), Underwriting Agreement (Autodesk Inc)
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters are subject to the condition that all representations and warranties on the part of the Company contained in this Agreement are, on the date hereof, on the Closing Date and on each Option Closing Date, if any, true and correct, the condition that the Company has performed its obligations required to be performed prior to the Closing Date and the following further conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date and each Option Closing Date, if any:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined for purposes of Section 15c3-1(c)(2)(vi)(FRule 436(g)(2) under the Exchange Securities Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the conditionassets, business, condition (financial or otherwise), management, operations, earnings or in the earnings, business or operations prospects of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus as of the date of this Agreement that, in your judgment, is material and adverse and that makes it, in your the Managers’ judgment, impracticable or inadvisable to market offer or sell the Offered Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Underwriters shall have received on the Closing Date and each Option Closing Date, if any, a certificate, dated the Closing Date or such Option Closing Date, as the case may be, and signed by an executive officer the Chief Executive Officer and Chief Financial Officer of the Company, to the effect set forth in Section 5(a)(i) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date or such Option Closing Date, as the case may be, and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date or such Option Closing Date, as the case may be, and as to such other matters as the Managers may reasonably request. The officer signing delivery of the certificate provided for in this Section 5(b) shall constitute a representation and delivering such certificate may rely upon warranty of the best of his or her knowledge Company as to proceedings threatenedthe statements made in such certificate.
(c) The Underwriters shall have received on the Closing Date and each Option Closing Date, if any, an opinion and statement of Xxxxxx Xxxxx Xxxxxxxxxx Xxxxxxxx & Xxxxxxx LLP, outside counsel for the Company, and an opinion of Xxxxxx X. Xxxxxxxxxx, Esq., General Counsel for the Company, each dated the Closing Date or such Option Closing Date, as the case may be, in form and substance reasonably satisfactory to counsel for the Underwriters to the effect set forth in Exhibit A hereto. In rendering such opinion, Xxxxxxxxxx Xxxxxxxx LLP, 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 its subsidiaries and of public officials. The opinion of Xxxxxxxxxx Xxxxxxxx LLP and the opinion of the General Counsel for the Company shall be rendered to the Underwriters at the request of the Company and shall so state therein.
(d) The Underwriters shall have received on the Closing Date and each Option Closing Date, if any, an opinion of Xxxxxx & Xxxxxxx P.C, Xxxxxxxx Islands counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit B hereto.
(e) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxx LLP, special U.S. maritime environmental counsel and Liberian counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit C hereto.
(f) The Underwriters shall have received on the Closing Date an opinion and statement of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel for the Underwriters, dated the Closing Date or such Option Closing Date, with respect as the case may be, in form and substance satisfactory to such matters as may be requested by the Underwriters. In rendering such opinion, Xxxxx & Xxxxxxx LLP, 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 its subsidiaries and of public officials.
(ge) The Underwriters shall have received, on each of the date hereof and hereof, the Closing Date and each Option Closing Date, if any, a letter dated the date hereof hereof, the Closing Date or the Option Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Deloitte & Touche Xxxxx Xxxxxxxx LLP, independent public accountants, 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, the Time of Sale Prospectus and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
(hf) The Offered Shares No stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Time of Sale Prospectus or the Prospectus shall have been approved for listing on the NYSEissued, and satisfactory evidence thereof no proceedings for such purpose shall have been provided instituted or threatened by the Commission; no notice of objection of the Commission to youthe use of the Registration Statement shall have been received; and all requests for additional information on the part of the Commission shall have been complied with to the Managers’ satisfaction.
(i) FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(jg) The “lock-up” agreements, each substantially in the form of Exhibit D B hereto, between you the Managers and Genco certain shareholders, officers and each officer and director directors of the Company relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you Managers on or before the date hereof, shall be in full force and effect on the Closing Date.
(h) The Shares shall have been approved for quotation on NASDAQ. The several obligations of the Underwriters to purchase Optional Additional Shares hereunder are subject to the delivery to you the Managers on the applicable Option Closing Date of such documents as you the Managers may reasonably request with respect to the good standing request, including certificates of officers of the Company, the due authorization legal opinions and issuance of the Optional Shares to be sold on such Option Closing Date an accountants’ comfort letter, and other matters related to the issuance of such Optional Additional Shares.
Appears in 2 contracts
Samples: Underwriting Agreement (Sandy Spring Bancorp Inc), Underwriting Agreement (Sandy Spring Bancorp Inc)
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Company or any of the securities of the Company or any of its subsidiaries Significant Subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined for purposes of Section 15c3-1(c)(2)(vi)(FRule 436(g)(2) under the Exchange Securities Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiariesSignificant Subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus as of the date of this Agreement that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Offered Shares Securities on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and that the Company has complied in all material respects with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an opinion and statement of Xxxxxx Xxxxx Xxxxxxx Xxxxxxxx & Xxxxxxx LLPXxxxxx Professional Corporation, outside counsel for the Company, dated the Closing Date, to substantially in the effect set forth in Exhibit A hereto.form attached hereto as Annex A.
(d) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx Xxxxx Xxxx & Xxxxxxx P.C, Xxxxxxxx Islands counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit B hereto.
(e) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxx LLP, special U.S. maritime environmental counsel and Liberian counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit C hereto.
(f) The Underwriters shall have received on the Closing Date an opinion and statement of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel for the Underwriters, dated the Closing Date, with respect in form and substance satisfactory to such matters as may the Managers. The opinion of counsel for the Company described in Section 5(c) above shall be requested by rendered to the UnderwritersUnderwriters at the request of the Company and shall so state therein.
(ge) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Deloitte Ernst & Touche Young LLP, independent public accountants, 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, the Time of Sale Prospectus and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
(h) The Offered Shares shall have been approved for listing on the NYSE, and satisfactory evidence thereof shall have been provided to you.
(i) FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(j) The “lock-up” agreements, each substantially in the form of Exhibit D hereto, between you and Genco and each officer and director of the Company relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date. The several obligations of the Underwriters to purchase Optional Shares hereunder are subject to the delivery to you on the applicable Option Closing Date of such documents as you may reasonably request with respect to the good standing of the Company, the due authorization and issuance of the Optional Shares to be sold on such Option Closing Date and other matters related to the issuance of such Optional Shares.
Appears in 2 contracts
Samples: Underwriting Agreement (Juniper Networks Inc), Underwriting Agreement (Juniper Networks Inc)
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of (A) any intended or potential downgrading or of (B) any review for a or possible change that does not indicate the direction of the possible change, change in the rating accorded any of the securities of or guaranteed by the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” (as such term is defined for purposes in Section 3(a)(62) of Section 15c3-1(c)(2)(vi)(F) under the Exchange Act); and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus as of the date of this Agreement that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Offered Shares Securities on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by Xxxxxxx Xxxxxx, Treasurer of the Company, or by an executive officer of the Company, to the effect set forth in Section 5(a)(i) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an opinion and statement of Xxxxxx Xxxxx Xxxxxx, Xxxx & Xxxxxxxx & Xxxxxxx LLP, outside counsel for the Company, dated the Closing Date, to in the effect set forth in Exhibit A heretoform agreed between such counsel and the Managers.
(d) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx Xxxxx Xxxx & Xxxxxxx P.C, Xxxxxxxx Islands counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit B hereto.
(e) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxx LLP, special U.S. maritime environmental counsel and Liberian counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit C hereto.
(f) The Underwriters shall have received on the Closing Date an opinion and statement of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel for the Underwriters, dated the Closing Date, Date with respect to such matters as may be requested by the UnderwritersUnderwriters shall request.
(ge) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Deloitte Ernst & Touche Young LLP, independent public accountants, 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, the Time of Sale Prospectus and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
(h) The Offered Shares shall have been approved for listing on the NYSE, and satisfactory evidence thereof shall have been provided to you.
(i) FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(j) The “lock-up” agreements, each substantially in the form of Exhibit D hereto, between you and Genco and each officer and director of the Company relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date. The several obligations of the Underwriters to purchase Optional Shares hereunder are subject to the delivery to you on the applicable Option Closing Date of such documents as you may reasonably request with respect to the good standing of the Company, the due authorization and issuance of the Optional Shares to be sold on such Option Closing Date and other matters related to the issuance of such Optional Shares.
Appears in 2 contracts
Samples: Underwriting Agreement (Amazon Com Inc), Underwriting Agreement (Amazon Com Inc)
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries the Subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined for purposes of Section 15c3-1(c)(2)(vi)(F3(a)(6) under of the Exchange Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiariesthe Subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus as of (excluding any amendments or supplements thereto subsequent to the date of this Agreement hereof) that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Offered Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i5(a) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an the opinion and statement of Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLPP.C., outside Xxxxxxxx Islands counsel for the Company, dated the Closing Date, to Date in the effect set forth in form attached hereto as Exhibit A hereto.A.
(d) The Underwriters shall have received on the Closing Date an Date: (i) the opinion of Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx P.CLLP, Xxxxxxxx Islands outside United States counsel for the Company, dated the Closing Date, to in the effect set forth form attached hereto as Exhibit B; (ii) a “negative assurance” letter of Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP, dated the Closing Date, in the form attached hereto as Exhibit B hereto.C; and (iii) the opinion of Xxxxxx & Xxxxxx LLP, outside Liberian counsel for the Company, dated the Closing Date, in the form attached hereto as Exhibit D.
(e) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxx LLP, special U.S. maritime environmental counsel and Liberian counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit C hereto.
(f) The Underwriters shall have received on the Closing Date an opinion and statement of Xxxxxx, Xxxxx & Xxxxxxx Bockius LLP, counsel for the Underwriters, dated the Closing Date, with respect in form and substance reasonably satisfactory to such matters as may be requested by the Underwriters. The opinions of Xxxxxx & Xxxxxxx P.C., Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP and Xxxxxx & Xxxxxx LLP described in Sections 5(c) and (d) above shall be rendered to the Underwriters at the request of the Company and shall so state therein.
(gf) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Deloitte & Touche LLP, independent registered public accountants, 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 or incorporated by reference into the Registration Statement, the Time of Sale Prospectus and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the day immediately preceding the date hereof.
(h) The Offered Shares shall have been approved for listing on the NYSE, and satisfactory evidence thereof shall have been provided to you.
(i) FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(jg) The “lock-up” agreements, each substantially in the form of Exhibit D E hereto, between you the Representatives, on behalf of the Underwriters, and Genco the executive officers and each officer and director directors of the Company relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you the Representatives on or before the date hereof, shall be in full force and effect on the Closing Date.
(h) The Prospectus, and any supplement thereto, shall have been filed in the manner and within the time period required by Rule 424(b) under the Securities Act; any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433 under the Securities Act; no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened by the Commission; and any request of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or otherwise shall have been complied with.
(i) The New York Stock Exchange shall have approved the Shares to be issued by the Company for listing, subject only to official notice of issuance.
(j) FINRA shall have raised no objections to the fairness and reasonableness of the underwriting terms and arrangements. The several obligations of the Underwriters to purchase Optional Additional Shares hereunder are subject to the delivery to you on the applicable Option Closing Date of such documents (including updated versions of the documents referred to in Sections 5(b) through (f) hereof) as you may reasonably request with respect to the good standing of the Company, the due authorization and issuance of the Optional Additional Shares to be sold on such Option Closing Date and other matters related to the issuance of such Optional Additional Shares.
Appears in 2 contracts
Samples: Underwriting Agreement (Genco Shipping & Trading LTD), Underwriting Agreement (Genco Shipping & Trading LTD)
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there no downgrading shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s debt securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” ”, as such term is defined for purposes of Section 15c3-1(c)(2)(vi)(F3(a)(62) under of the Exchange Act; and, and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Company’s debt securities.
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus as of the date of this Agreement that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Offered Shares Securities on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an opinion and statement of Xxxxxx Xxxxx Xxxxxxx Xxxxxxxx & Xxxxxxx LLPXxxxxx, Professional Corporation, outside counsel for the Company, dated the Closing Date, to substantially in the effect set forth in Exhibit A hereto.form attached hereto as Annex A.
(d) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx Xxxxx Xxxx & Xxxxxxx P.C, Xxxxxxxx Islands counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit B hereto.
(e) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxx LLP, special U.S. maritime environmental counsel and Liberian counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit C hereto.
(f) The Underwriters shall have received on the Closing Date an opinion and statement of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel for the Underwriters, dated the Closing Date, with respect in the firm and substance to such matters as may be requested agreed upon by the UnderwritersManagers and such counsel. The opinion of counsel for the Company described in Section 5(c) above shall be rendered to the Underwriters at the request of the Company and shall so state therein.
(ge) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Deloitte & Touche LLP, independent public accountants, 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, the Time of Sale Prospectus and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than three (3) days prior to the date hereof.
(h) The Offered Shares shall have been approved for listing on the NYSE, and satisfactory evidence thereof shall have been provided to you.
(i) FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(j) The “lock-up” agreements, each substantially in the form of Exhibit D hereto, between you and Genco and each officer and director of the Company relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date. The several obligations of the Underwriters to purchase Optional Shares hereunder are subject to the delivery to you on the applicable Option Closing Date of such documents as you may reasonably request with respect to the good standing of the Company, the due authorization and issuance of the Optional Shares to be sold on such Option Closing Date and other matters related to the issuance of such Optional Shares.
Appears in 2 contracts
Samples: Underwriting Agreement (NetApp, Inc.), Underwriting Agreement (NetApp, Inc.)
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters Underwriter are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined for purposes of Section 15c3-1(c)(2)(vi)(FRule 436(g)(2) under the Exchange Securities Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus as of the date of this Agreement that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Offered Warrant Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Underwriters Underwriter shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i6(a)(i) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The executive officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters Underwriter shall have received on the Closing Date an opinion and statement of Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx Lovells US LLP, outside counsel for the Company, dated the Closing Date, substantially in the form attached hereto as Exhibit B-1 and a negative assurance letter of Xxxxx Lovells US LLP, dated the Closing Date, with respect to certain other matters, substantially in the effect set forth in form of Exhibit A heretoB-2.
(d) The Underwriters Underwriter shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxxx P.CXxxx Xxxx, Xxxxxxxx Islands counsel Vice President and General Counsel for the Company, dated the Closing Date, to substantially in the effect set forth in form attached hereto as Exhibit B heretoB-3.
(e) The Underwriters Underwriter shall have received on the Closing Date an opinion of Xxxxxx Xxxxxxxx & Xxxxxx Xxxxx LLP, special U.S. maritime environmental counsel and Liberian counsel for the CompanySelling Warrantholder, dated the Closing Date, to substantially in the effect set forth in form attached hereto as Exhibit C hereto.C.
(f) The Underwriters Underwriter shall have received on the Closing Date an opinion and statement of Xxxxxx, Xxxxx Xxxx & Xxxxxxx Xxxxxxxx LLP, counsel for the UnderwritersUnderwriter, dated the Closing Date, with respect to covering such matters as the Underwriter may be requested by the Underwritersreasonably request.
(g) The Underwriters Underwriter shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the UnderwritersUnderwriter, from Deloitte Ernst & Touche Young LLP, independent registered public accountants, 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, the Time of Sale Prospectus and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
(h) The Offered Warrant Shares shall have been approved for listing on The New York Stock Exchange, notice of the NYSE, offering and satisfactory evidence thereof issuance shall have been provided to youThe New York Stock Exchange and satisfactory evidence of such actions shall have been provided to the Underwriter.
(i) FINRA The Underwriter shall have raised no objection received from the Selling Warrantholder on or prior to the fairness Closing Date, a properly completed and reasonableness of the underwriting terms and arrangementsexecuted Internal Revenue Service Form W-9 together with all required attachments to such form.
(j) The Selling Warrantholder and the Company shall have delivered to the Company’s transfer agent and registrar for the Common Stock and the Warrant, The Bank of New York Mellon Corporation (the “Transfer Agent”), any certificates, stock powers and other documentation, as applicable, that the Transfer Agent may require in connection with the consummation of the transactions contemplated hereby or the delivery of the Warrant Shares to the Underwriter pursuant to the Warrant upon the Underwriter’s exercise thereunder, including the subsequent resale of the Warrant Shares by the Underwriter.
(k) The “lock-up” agreements, each substantially in the form of Exhibit D A-1 hereto, between you and Genco and each officer and director of the Company set forth on Schedule IV and the “lock-up” agreement, substantially in the form of Exhibit A-2 hereto, between you and the Selling Warrantholder, each relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date. The several obligations of the Underwriters to purchase Optional Shares hereunder are subject to the delivery to you on the applicable Option Closing Date of such documents as you may reasonably request with respect to the good standing of the Company, the due authorization and issuance of the Optional Shares to be sold on such Option Closing Date and other matters related to the issuance of such Optional Shares.
Appears in 2 contracts
Samples: Underwriting Agreement (Trailer Investments, LLC), Underwriting Agreement (Wabash National Corp /De)
Conditions to the Underwriters’ Obligations. The obligations of the Company to sell the Securities to the Underwriters and the several obligations of the Underwriters to purchase and pay for the Securities on the Closing Date are subject to the following conditions:
(a) The Prospectus, as amended or supplemented, in relation to the Securities, shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period described for such filing by the rules and regulations under the Securities Act, and as of the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall be in effect or shall be pending or, to the knowledge of the Company, threatened by the Commission; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use pursuant to Rule 401(g)(2) shall have been issued and no proceeding for such purpose or pursuant to Section 8A of the Securities Act shall have been instituted or threatened.
(b) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined for purposes of Section 15c3-1(c)(2)(vi)(F3(a)(62) under the Exchange Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus as of the date of this Agreement that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Offered Shares Securities on the terms and in the manner contemplated in the Time of Sale Prospectus.
(bc) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i5(b)(i) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The Any officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(cd) The Underwriters shall have received on the Closing Date an opinion and statement a negative assurance letter of Xxxxxx Cravath, Swaine & Xxxxx Xxxxxxxx & Xxxxxxx LLP, outside counsel for the Company, each dated the Closing Date, in form and substance reasonably acceptable to the effect set forth in Exhibit A hereto.
(d) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxxx P.C, Xxxxxxxx Islands counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit B heretoUnderwriters.
(e) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxx LLP, special U.S. maritime environmental counsel and Liberian counsel for the General Counsel or Associate General Counsel to the Company, dated the Closing Date, in form and substance reasonably acceptable to the effect set forth in Exhibit C heretoUnderwriters.
(f) The Underwriters shall have received on the Closing Date an opinion and statement a negative assurance letter of XxxxxxSkadden, Xxxxx Arps, Slate, Xxxxxxx & Xxxxxxx Xxxx LLP, counsel for the Underwriters, each dated the Closing Date, with respect in form and substance reasonably acceptable to such matters as may be requested by the Underwriters.
(g) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Deloitte & Touche PricewaterhouseCoopers LLP, independent public accountants, 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, the Time of Sale Prospectus and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
(h) The Offered Shares Underwriters shall have been approved for listing received, on each of the NYSEdate hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory evidence thereof shall have been provided to youthe Underwriters, from Xxxxxx X. Xxxxxxxxx, Senior Vice President and Chief Financial Officer of the Company, substantially in the form of Exhibit A hereto.
(i) FINRA On or prior to the Closing Date, the Company shall have raised no objection furnished to the fairness Underwriters such further certificates and reasonableness of documents as the underwriting terms and arrangementsUnderwriters may reasonably request.
(j) The “lock-up” agreements, each substantially in Company shall have executed and delivered the form of Exhibit D hereto, between you Indenture and Genco the Securities.
(k) The representations and each officer and director warranties of the Company relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, contained herein shall be in full force true and effect correct on and as of the Closing Date. The several obligations of the Underwriters to purchase Optional Shares hereunder are subject to the delivery to you on the applicable Option Closing Date of such documents as you may reasonably request with respect to the good standing of the Company, the due authorization and issuance of the Optional Shares to be sold on such Option Closing Date and other matters related to the issuance of such Optional Shares.
Appears in 2 contracts
Samples: Underwriting Agreement (Crown Castle International Corp), Underwriting Agreement (Crown Castle International Corp)
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined for purposes in Section 3(a)(62) of Section 15c3-1(c)(2)(vi)(F) under the Exchange Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus as of the date of this Agreement that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Offered Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and that the Company has has, in all material respects, complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date (i) an opinion and statement negative assurance letter of Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP, outside counsel for the Company, and (ii) an opinion of the Company’s in-house counsel, covering matters relating to the intellectual property of the Company and its subsidiaries, in each case, dated the Closing Date, Date and in a form reasonably satisfactory to the effect set forth Underwriters and their counsel. The opinions and letter of counsel for the Company described in Exhibit A heretothis Section 5(c) shall be rendered to the Underwriters at the request of the Company and shall so state therein.
(d) The Underwriters shall have received on the Closing Date an opinion and negative assurance letter of Xxxxxx Ropes & Xxxxxxx P.C, Xxxxxxxx Islands counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit B hereto.
(e) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxx LLP, special U.S. maritime environmental counsel and Liberian counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit C hereto.
(f) The Underwriters shall have received on the Closing Date an opinion and statement of Xxxxxx, Xxxxx & Xxxxxxx Xxxx LLP, counsel for the Underwriters, dated the Closing Date, with respect in a form satisfactory to such matters as may be requested by the Underwriters.
(ge) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Deloitte Ernst & Touche Young LLP, independent public accountants, 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, the Time of Sale Prospectus and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
(h) The Offered Shares shall have been approved for listing on the NYSE, and satisfactory evidence thereof shall have been provided to you.
(i) FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(jf) The “lock-up” agreements, each substantially in the form of Exhibit D A hereto, between you and Genco certain shareholders, officers and each officer and director directors of the Company relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date. The several obligations of the Underwriters to purchase Optional Additional Shares hereunder are subject to the delivery to you on the applicable Option Closing Date of such documents as you may reasonably request with respect to the good standing of the Company, the due authorization and issuance of the Optional Additional Shares to be sold on such Option Closing Date and other matters related to the issuance of such Optional Additional Shares.
Appears in 2 contracts
Samples: Underwriting Agreement (Infinity Pharmaceuticals, Inc.), Underwriting Agreement (Infinity Pharmaceuticals, Inc.)
Conditions to the Underwriters’ Obligations. The obligations of ------------------------------------------- the Company and the several obligations of the Underwriters hereunder are subject to the condition that the Registration Statement shall have become effective not later than the date hereof. The several obligations of the Underwriters hereunder are subject to the following further conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined for purposes of Section 15c3-1(c)(2)(vi)(F) under the Exchange Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus as of the date of this Agreement that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Offered Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters You shall have received on the Closing Date an opinion and statement of Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLPXxxxxxx, outside counsel for the Company, dated the Closing Date, to the effect that
(i) the Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the State of Delaware with corporate power and authority to own its properties and conduct its business as described in the Registration Statement and Prospectus; and, based solely on certificates from public officials, counsel shall confirm that the Company is qualified to do business in each state set forth in Exhibit A heretoSchedule I to such opinion;
(ii) an opinion to the same general effect as clause (i) of this subparagraph in respect of RSC Holdings Inc., RSC Acquisition Corp., RSC Industrial Corporation, RSC Xxxxx Inc. and RSC Rents, Inc., the direct and indirect Delaware and California subsidiaries of the Company (collectively, the "Identified Subsidiaries" and each an "Identified Subsidiary");
(iii) the issued and outstanding shares of capital stock of each Identified Subsidiary are as set forth in Schedule II to such opinion (the "Subsidiary Shares"). The Subsidiary Shares have been duly authorized, validly issued and are fully paid and nonassessable. Except as disclosed in the Registration Statement (including contracts filed as exhibits to the Registration Statement), the Company owns of record directly or indirectly all of the Subsidiary Shares and all of the outstanding shares of capital stock of each of RSC Alabama, Inc., The Air & Pump Company, Inc. and Xxxxxx Xxxxx Equipment, Inc. (collectively with the Identified Subsidiaries, the "Subsidiaries"), and to the knowledge of such counsel, owns such stock of the Subsidiaries free and clear of any adverse claim (as defined in Section 8-302 of the Uniform Commercial Code);
(iv) the authorized capital stock of the Company consists of 40,000,000 shares of Common Stock and 500,000 shares of preferred stock, par value $.01 per share, of which, based solely upon a review of a certificate of the transfer agent and registrar of the Company and upon issuance, delivery and payment by you and the other Underwriters for shares of Common Stock to be issued pursuant to and in accordance with the terms of the Underwriting Agreement, ________ shares of Common Stock are outstanding as of the Closing Date (the "Capital Stock"); and such Capital Stock conforms as to legal matters in all material respects to the description thereof in the Prospectus under the caption "Description of Capital Stock";
(v) the Firm Shares and the Shares have been duly authorized and, upon issuance, delivery and payment by you and the other Underwriters therefor pursuant to and in accordance with the terms of the Underwriting Agreement, will be validly issued and is fully paid and nonassessable;
(vi) the form of certificates for the Shares to be delivered hereunder are in due and proper form under the Delaware General Corporation Law (the "DGCL");
(vii) the Registration Statement has become effective under the Securities Act and, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act and no proceedings therefor have been by the Commission;
(1) the Registration Statement and the Prospectus comply as to form in all material respects with the requirements for registration statements on Form S-1 under the Securities Act; it being understood, however, that such counsel need express no opinion with respect to the financial statements, the notes thereto, and the related schedules and other financial, numerical, statistical or accounting data included in the Registration Statement or the Prospectus; (2) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which any of the properties of the Company or any of its subsidiaries is subject that are required to be described in the Registration Statement or the Prospectus and are not so described, other than proceedings that, if decided adversely to the Company or such subsidiaries, would not have a material adverse effect on the Company and its subsidiaries, taken as a whole, or on the power or ability of the Company to perform its obligations under this Agreement; and (3) to such counsel's knowledge there are no leases, 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 which are not described or filed, as required. In passing upon the compliance as to form of the Registration Statement and the Prospectus, such counsel may assume that the statements made therein are correct and complete;
(ix) the statements (1) under the caption "Management --401(k) Plan," "Management -- Equity Participation Plans," "Management-- Executive Incentive Bonus Plan," "Management -- Employee Qualified Stock Purchase Plan," "Certain Relationships and Related Transactions," "Description of Capital Stock" and "Shares Eligible for Future Sale" in the Prospectus and (2) in the Registration Statement in Items 14 and 15, insofar as such statements constitute a summary of the terms of the Company's capital stock, legal matters or documents referred to therein, are accurate in all material respects;
(x) this Agreement has been duly authorized, executed and delivered by the Company; and to such counsel's knowledge, no consent, approval, authorization or order of, or filing with, any federal or New York or Delaware court or governmental agency or body is required for the consummation of the issuance and sale of the Shares by the Company pursuant to this Agreement, except such as have been obtained under the federal securities laws and such as may be required under the state securities laws in connection with the purchase and distribution of such Shares by the Underwriters;
(xi) the execution of this Agreement and the issuance of the Shares by the Company pursuant to this Agreement will not (i) result in a breach of or a default under, any agreement, franchise, license, indenture, mortgage, deed of trust, or other instrument of the Company or any of its subsidiaries or by which the property of any of them is bound which is filed as an exhibit to the Registration Statement; or (ii) violate any of the provisions of the Company's certificate of incorporation or bylaws or the DGCL or any federal or New York statute, rule or regulation known to such counsel to be applicable to the Company (other than federal securities laws, as to which such counsel states no opinion); and
(xii) the Company is not, and after giving effect to the offering of the Shares and the application of the proceeds thereof as described in the Prospectus, will not be an "investment company" as such term is defined in the Investment Company Act of 1940, as amended. In addition, such counsel shall state that it has participated in conferences with officers and other representatives of the Company, representatives of the independent public accountants for the Company and representatives of the Underwriters, at which the contents of the Registration Statement and the Prospectus and related matters were discussed and, although such counsel is not passing upon, and does not assume any responsibility for, the accuracy, completeness or fairness of the statements contained in the Registration Statement and the Prospectus (other than as expressly set forth above in paragraphs 4 and 9) and has not made any independent check or verification thereof, during the course of such participation (relying as to materiality to a large extent upon the statements of officers and other representatives of the Company), no facts have come to the attention of such counsel that caused such counsel to believe that either the Registration Statement, at the time it became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, as of its date and as of 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 which they were made, not misleading; it being understood that such counsel expresses no belief with respect to the financial statements, the notes thereto and the related schedules and other financial, numerical, statistical or accounting data included in the Registration Statement or the Prospectus.
(d) The Underwriters You shall have received on the Option Closing Date an opinion of counsel for each of the Selling Stockholders, dated the Option Closing Date, to the effect that:
(i) this Agreement has been duly authorized, executed and delivered or on behalf of the Selling Stockholders;
(ii) the execution and delivery by each Selling Stockholder of, and the performance by each Selling Stockholder of its obligations under, this Agreement, the Custody Agreement and the Power of Attorney of such Selling Stockholder will not contravene any provision of applicable law or, to the best of such counsel's knowledge, any agreement or other instrument binding upon such Selling Stockholder or, to the best of such counsel's knowledge, any judgment or decree of any governmental body, agency or court having jurisdiction over such Selling Stockholder and which would have a material adverse effect on such Selling Stockholder's ability to perform its obligations under this Agreement, the Custody Agreement and the Power of Attorney. No consent, approval, authorization or order of or qualification with any governmental body or agency is required for the performance by such Selling Stockholder of its obligations under this Agreement, the Custody Agreement or the Power of Attorney of such Selling Stockholder except for compliance with the Securities Act and such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares by the Underwriters;
(iii) each of the Selling Stockholders has the legal right and power, and authority, to enter into this Agreement, the Custody Agreement and the Power of Attorney of such Selling Stockholder and to sell, transfer and deliver the Shares to be sold by such Selling Stockholder;
(iv) the Custody Agreement and the Power of Attorney of such Selling Stockholder have been duly authorized, executed and delivered by such Selling Stockholder and are valid and binding obligations of such Selling Stockholder; and
(v) delivery of the Shares to be sold by each Selling Stockholder pursuant to this Agreement will pass good and marketable title to such Shares free and clear of any security interests, claims, liens, equities and other encumbrances; provided that counsel may -------- assume that purchasers of Shares to be sold by each Selling Stockholder are bona fide purchasers.
(e) You shall have received on the Closing Date an opinion of Xxxxxx Shearman & Xxxxxxx P.C, Xxxxxxxx Islands counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit B hereto.
(e) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxx LLPSterling, special U.S. maritime environmental counsel and Liberian counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit C hereto.
(f) The Underwriters shall have received on the Closing Date an opinion and statement of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel for the Underwriters, dated the Closing Date, covering the matters referred to in subparagraphs (v), (ix) (but only as to the statements in the Prospectus under "Description of Capital Stock" and "Underwriters"), (x) and (xiii) of paragraphs (c) above. With respect to subparagraph (xiii) of paragraph (c) above, Xxxxxx & Xxxxxxx and Shearman & Sterling may state that their opinions and beliefs are based upon their participation in the preparation of the Registration Statement and Prospectus and any amendments or supplements thereto and review and discussion of the contents thereof, but are without independent check or verification except as specified. With respect to paragraph (d) above, counsel for each of the Selling Stockholders may rely upon an opinion or opinions of counsel for any Selling Stockholders and, with respect to factual matters and to the extent such matters as may counsel deems appropriate, upon the representations of each Selling Stockholder contained herein and in the Custody Agreement and Power of Attorney of such Selling Stockholder and in other documents and instruments; provided that (A) each such counsel for the Selling Stockholders is satisfactory to your counsel, (B) a copy of each opinion so relied upon is delivered to you and is in form and substance satisfactory to your counsel, (C) copies of such Custody Agreements and Powers of Attorney and of any such other documents and instruments shall be requested by delivered to you and shall be in form and substance satisfactory to your counsel and (D) counsel for each of the UnderwritersSelling Stockholders shall state in their opinion that they are justified in relying on each such other opinion.
(gf) The Underwriters You shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwritersyou, from Deloitte each of Ernst & Touche Young LLP, McGladrey & Xxxxxx, LLP and Xxxxxxxxx & Xxxxxxxx, P.C., independent public accountants, 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, the Time of Sale Prospectus Statement and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
(hg) The Offered Shares shall have been approved for listing on the NYSE, and satisfactory evidence thereof shall have been provided to you.
(i) FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(j) The “"lock-up” " agreements, each substantially in the form of Exhibit D A hereto, between you and Genco certain stockholders, officers and each officer and director directors of the Company listed on Schedule IV hereto relating to sales and certain other dispositions of shares of Common Stock common stock of the Company or certain other securitiesany securities convertible into or exercisable or exchangeable for such common stock, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date.
(h) You shall receive such further certificates and documents relating to the Company, its subsidiaries and the Selling Stockholders as you may reasonably request. The several obligations of the U.S. Underwriters to purchase Optional Additional Shares hereunder are subject to the delivery to you the U.S. Representatives on the applicable Option Closing Date of such documents as you they may reasonably request with respect to the good standing of the Company, the due authorization and issuance of the Optional Additional Shares to be sold on such Option Closing Date and other matters related to the issuance of such Optional the Additional Shares.
Appears in 2 contracts
Samples: Underwriting Agreement (Rental Service Corp), Underwriting Agreement (Rental Service Corp)
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters are subject to the satisfaction or waiver of the following conditionsconditions on or prior to the Closing Date:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) no order suspending the effectiveness of the Registration Statement shall be in effect, and no proceeding for such purpose or pursuant to Section 8A under the Securities Act shall be pending before or threatened by the Commission;
(ii) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Company or any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined for purposes in Section 3(a)(62) of Section 15c3-1(c)(2)(vi)(F) under the Exchange Act; and
(iiiii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus as of the date of this Agreement that, in your the Representatives’ judgment, is material and adverse and that makes it, in your the Representatives’ judgment, impracticable to market the Offered Shares Securities on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The representations and warranties of the Company contained in this Agreement shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date; the Company shall have performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date.
(c) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(iSections 5(a) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an opinion and statement of Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP, outside counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit A hereto.
(d) The Underwriters shall have received on the Closing Date an opinion and negative assurance letter of Xxxxxx Xxxxx Xxxx & Xxxxxxx P.CLLP, Xxxxxxxx Islands outside counsel for the Company, dated the Closing Date, in form and substance reasonably satisfactory to the effect set forth in Exhibit B heretoUnderwriters.
(e) The Underwriters shall have received on the Closing Date an opinion and negative assurance letter of Xxxxxx Xxxxxxx, Arps, Slate, Xxxxxxx & Xxxxxx LLP, special U.S. maritime environmental counsel and Liberian counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit C hereto.
(f) The Underwriters shall have received on the Closing Date an opinion and statement of Xxxxxx, Xxxxx & Xxxxxxx Xxxx LLP, counsel for the Underwriters, dated the Closing Date, with respect to such matters as may be reasonably requested by the Underwriters.
(gf) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Deloitte & Touche LLPE&Y, independent public accountants, 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, the Time of Sale Prospectus and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier no more than three (3) days prior to the date hereofClosing Date.
(g) The Company shall have executed and delivered the Supplemental Indenture, in form and substance reasonably satisfactory to the Underwriters, and the Underwriters shall have received executed copies thereof.
(h) The Offered Shares shall have been approved for listing on the NYSE, and satisfactory evidence thereof shall have been provided to you.
(i) FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(j) The “lock-up” agreements, each substantially in the form of Exhibit D hereto, between you and Genco and each officer and director of the Company relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on On or before the date hereofClosing Date, the Underwriters and counsel for the Underwriters shall have received such information, documents, letters and opinions as they may reasonably require for the purposes of enabling them to pass upon the issuance and sale of the Securities as contemplated herein, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of any of the conditions or agreements, herein contained. If any condition specified in this Section 5 is not satisfied when and as required to be in full force and effect satisfied, this Agreement may be terminated by the Representatives by notice to the Company at any time on or prior to the Closing Date. The several obligations of the Underwriters to purchase Optional Shares hereunder are subject to the delivery to you , which termination shall be without liability on the applicable Option Closing Date part of any party to any other party, except that Sections 6(i), 8 and 11 hereof shall at all times be effective and shall survive such documents as you may reasonably request with respect to the good standing of the Company, the due authorization and issuance of the Optional Shares to be sold on such Option Closing Date and other matters related to the issuance of such Optional Sharestermination.
Appears in 2 contracts
Samples: Underwriting Agreement (Meta Platforms, Inc.), Underwriting Agreement (Meta Platforms, Inc.)
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters Company to sell the Shares to the Underwriter and the obligation of the Underwriter to purchase and pay for the Shares on the Closing Date are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined for purposes of Section 15c3-1(c)(2)(vi)(F) under the Exchange Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time Prospectus (exclusive of Sale Prospectus as of any amendments or supplements thereto subsequent to the date of this Agreement Agreement) that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Offered Shares on the terms and in the manner as contemplated in the Time of Sale Prospectushereby.
(b) The Underwriters Underwriter shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i5(a) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the date of this Agreement and the Closing Date and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) 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 shall be pending or, to the knowledge of the Company or you, shall be contemplated by the Commission.
(d) The Underwriters Underwriter shall have received on the Closing Date an opinion and statement of Suthxxxxxx Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLPXrenxxx XXX, outside counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit A hereto.that:
(di) The Underwriters shall the Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has the corporate power and authority to own its property and to conduct its business, in each case as described in the Registration Statement and the Prospectus, and is duly qualified to transact business and is in good standing in the District of Columbia and the States of Illinois, Michigan, Georgia, Pennsylvania, California and [______];
(ii) each of Allied Investment, Allied SBLC and Allied REIT (collectively, the "SUBSIDIARIES") has been duly incorporated, is validly existing as a corporation, is in good standing under the laws of the jurisdiction of its incorporation, has the corporate power and authority to own its property and to conduct its business, in each case as described in the Registration Statement and the Prospectus, and Allied Investment is duly qualified to transact business and is in good standing in the District of Columbia and the State of California;
(iii) the authorized capital stock of the Company conforms as to legal matters to the description thereof contained in the Prospectus;
(iv) the shares of Common Stock outstanding immediately prior to the issuance of the Shares have received on been duly authorized and are validly issued, fully paid and non-assessable;
(v) all of the Closing Date an opinion issued shares of Xxxxxx & Xxxxxxx P.C, Xxxxxxxx Islands counsel for capital stock of each Subsidiary are owned of record directly by the Company, dated and to such counsel's knowledge, are free and clear of all liens, encumbrances, equities or claims, except with respect to the Closing Dateemployee-owned shares of preferred stock of Allied REIT and the Preferred Stock of Allied Investment owned by the SBA;
(vi) the Shares have been duly authorized and, when issued and delivered against payment therefor in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Shares will not be subject to any preemptive or similar rights under provisions of applicable law or the certificate of incorporation or bylaws of the Company or, to the effect set forth in Exhibit B hereto.best of such counsel's knowledge, any agreement or other instrument binding upon the Company or any of its Subsidiaries;
(evii) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxx LLPthis Agreement has been duly authorized, special U.S. maritime environmental counsel executed and Liberian counsel for delivered by the Company;
(viii) the execution and delivery by the Company of, dated and the Closing Dateperformance by the Company of its obligations under, this Agreement will not contravene any provision of applicable law or the certificate of incorporation or by-laws of the Company or, to the effect set forth best of such counsel's knowledge, any agreement or other instrument binding upon the Company or any of its subsidiaries that is material to the Company and its subsidiaries, taken as a whole, or, to the best of such counsel's knowledge, any judgment, order, writ or decree of any governmental body, agency or court having jurisdiction over the Company or any subsidiary, and no consent, approval, authorization or order of, or qualification or filing with, any governmental body or agency is required for the performance by the Company of its obligations under this Agreement, except such as may be required by the National Association of Securities Dealers, Inc. or the securities or Blue Sky laws of the various states or of any foreign jurisdiction in Exhibit C hereto.connection with the offer and sale of the Shares by the Underwriter;
(fix) The Underwriters shall have received on the Closing Date an opinion statements (A) in the Prospectus under the captions "Certain Government Regulations," "Description of Capital Stock," "Taxation" and statement "Underwriting," (B) in the Statement of XxxxxxAdditional Information under the caption "Tax Status" and (C) in the Registration Statement in Item 29, Xxxxx & Xxxxxxx LLPin each case insofar as such statements constitute summaries of the legal matters, counsel documents or proceedings referred to therein, fairly present the information called for the Underwriters, dated the Closing Date, with respect to such legal matters, documents and proceedings and fairly summarize the matters as may be requested by referred to therein; (x) to such counsel's knowledge, there are no legal or governmental proceedings pending or threatened to which the Underwriters.
(g) The Underwriters shall have received, on each Company or any of its subsidiaries is a party or to which any of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Deloitte & Touche LLP, independent public accountants, containing statements and information properties of the type ordinarily included in accountants’ “comfort letters” Company or any of its subsidiaries is subject that are required to underwriters with respect to the financial statements and certain financial information contained be described in the Registration Statement, Statement or the Time of Sale Prospectus and are not so described and to such counsel's knowledge, there are no statutes, regulations, contracts or other documents that are required to be described in the Prospectus; provided that Registration Statement or the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
(h) The Offered Shares shall have been approved for listing on the NYSE, and satisfactory evidence thereof shall have been provided Prospectus or to you.
(i) FINRA shall have raised no objection be filed as exhibits to the fairness and reasonableness of the underwriting terms and arrangements.
(j) The “lock-up” agreements, each substantially in the form of Exhibit D hereto, between you and Genco and each officer and director of the Company relating to sales and certain other dispositions of shares of Common Stock Registration Statement that are not described or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date. The several obligations of the Underwriters to purchase Optional Shares hereunder are subject to the delivery to you on the applicable Option Closing Date of such documents filed as you may reasonably request with respect to the good standing of the Company, the due authorization and issuance of the Optional Shares to be sold on such Option Closing Date and other matters related to the issuance of such Optional Shares.required;
Appears in 2 contracts
Samples: Underwriting Agreement (Allied Capital Corp), Underwriting Agreement (Allied Capital Corp)
Conditions to the Underwriters’ Obligations. The several obligations obligation of the Underwriters to purchase and pay for the Securities on the Closing Date are subject to the accuracy of the representations and warranties on the part of the Company contained herein or in certificates of any officer or other representative of the Company and delivered pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following further conditions:
(a) the Registration Statement shall have become effective not later than 5:00 p.m. (New York City time) on the date hereof.
(b) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there no order suspending the effectiveness of the Registration Statement shall not have occurred any downgradingbe in effect, nor shall any notice have been given no order preventing or suspending the use of any intended preliminary prospectus or potential downgrading the Prospectus or of any review amendment or supplement thereto has been issued, and no proceedings for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company those purposes or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined for purposes of pursuant to Section 15c3-1(c)(2)(vi)(F) 8A under the Exchange ActSecurities Act shall be pending before or threatened by the Commission; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiariesCompany, taken as a wholewhether or not arising in the ordinary course of business, from that set forth in the Time of Sale Prospectus as of the date of this Agreement that, in your the Representatives’ judgment, is material and adverse and that makes it, in your the Representatives’ judgment, impracticable to market the Offered Shares Securities on the terms and in the manner contemplated in the Time of Sale Prospectus.
(bc) The Underwriters Representatives shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer the Chief Executive Officer or the Chief Financial Officer of the Company, to the effect set forth in Section 5(a)(i5(b) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(cd) The Underwriters Representatives shall have received on the Closing Date an opinion and statement negative assurance letter of Xxxxxx Xxxxx Xxxx & Xxxxxxxx & Xxxxxxx LLP, outside counsel for the Company, dated the Closing Date, in a form reasonably acceptable to the effect set forth in Exhibit A hereto.
(d) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxxx P.C, Xxxxxxxx Islands counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit B heretoRepresentatives.
(e) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxx LLP, special U.S. maritime environmental counsel and Liberian counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit C hereto.
(f) The Underwriters Representatives shall have received on the Closing Date an opinion and statement negative assurance letter of Xxxxxx, Xxxxx & Xxxxxxx Sidley Austin LLP, counsel for the Underwriters, dated the Closing Date, with respect in a form reasonably acceptable to such matters as may be requested by the UnderwritersRepresentatives.
(gf) The Underwriters Representatives shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the UnderwritersRepresentatives, from Deloitte & Touche LLPWithum, independent public accountants, 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, the Time of Sale Prospectus and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
(hg) The Offered Shares Company shall have been approved for listing on the NYSE, and satisfactory evidence thereof shall have been provided to you.
(i) FINRA shall have raised no objection delivered to the fairness and reasonableness Underwriters executed copies of the underwriting terms Transaction Agreements and arrangements.
(j) The “lock-up” agreements, each substantially in the form of Exhibit D hereto, between you and Genco Insider Letter and each officer and director of the Company relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date. .
(h) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(i) The several Securities shall have been duly listed, and admitted and authorized for trading, on Nasdaq, subject to notice of issuance, satisfactory evidence of which shall have been provided to the Representatives.
(j) Prior to the Closing Date, the Company shall have caused proceeds from the Private Placement Warrants sold by the Company to the Sponsor on the Closing Date to be deposited into the Trust Account such that the cumulative amount deposited into the Trust Account as of the Closing Date shall equal the product of the number of Securities sold on the Closing Date and the Public Offering Price per Unit.
(k) No order preventing or suspending the sale of the Securities in any jurisdiction designated by the Representatives pursuant to Section 6(j) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(l) Counsel for the Underwriters shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to render the opinions or make the statements requested by the Underwriters, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the covenants, obligations or conditions, contained herein; and all material proceedings taken by the Company in connection with the offer and sale of the Securities as contemplated herein shall be satisfactory in form and substance to the Representatives and counsel to the Underwriters.
(m) The obligation of the Underwriters to purchase Optional Shares Additional Securities hereunder are subject to the delivery to you the Representatives on the applicable Option Closing Date of the following:
(i) a certificate, dated the Option Closing Date and signed by the Chief Executive Officer or the Chief Financial Officer of the Company, confirming that the certificate delivered on the Closing Date pursuant to Section 5(c) hereof remains true and correct as of such Option Closing Date;
(ii) an opinion and negative assurance letter of Xxxxx Xxxx & Xxxxxxxx LLP, outside counsel for the Company, dated the Option Closing Date, relating to the Additional Securities to be purchased on such Option Closing Date in a form reasonably acceptable to the Representatives;
(iii) an opinion of Sidley Austin LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Additional Securities to be purchased on such Option Closing Date in a form reasonably acceptable to the Representatives;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Withum, independent public accountants, substantially in the same form and substance as the letter furnished to the Representatives pursuant to Section 5(f) hereof; provided that the letter delivered on the Option Closing Date shall use a “cut-off date” not earlier than three (3) business days prior to such Option Closing Date; and
(v) such other documents as you the Underwriters may reasonably request with respect to the good standing of the Company, the due authorization and issuance of the Optional Shares Additional Securities to be sold on such Option Closing Date and other matters related to the issuance of such Optional SharesAdditional Securities.
Appears in 2 contracts
Samples: Underwriting Agreement (Bilander Acquisition Corp.), Underwriting Agreement (Galliot Acquisition Corp.)
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Company or any of the securities of the Company or any of its subsidiaries Significant Subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined for purposes of Section 15c3-1(c)(2)(vi)(F3(a)(62) under of the Exchange Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiariesSignificant Subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus as of the date of this Agreement that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Offered Shares Securities on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and that the Company has complied in all material respects with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an opinion and statement of Xxxxxx Xxxxx Xxxxxxx Xxxxxxxx & Xxxxxxx LLPXxxxxx Professional Corporation, outside counsel for the Company, dated the Closing Date, to substantially in the effect set forth in Exhibit A hereto.form attached hereto as Annex A.
(d) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx Xxxxx Xxxx & Xxxxxxx P.C, Xxxxxxxx Islands counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit B hereto.
(e) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxx LLP, special U.S. maritime environmental counsel and Liberian counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit C hereto.
(f) The Underwriters shall have received on the Closing Date an opinion and statement of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel for the Underwriters, dated the Closing Date, with respect in form and substance satisfactory to such matters as may the Managers. The opinion of counsel for the Company described in Section 5(c) above shall be requested by rendered to the UnderwritersUnderwriters at the request of the Company and shall so state therein.
(ge) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Deloitte Ernst & Touche Young LLP, independent public accountants, 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, the Time of Sale Prospectus and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
(h) The Offered Shares shall have been approved for listing on the NYSE, and satisfactory evidence thereof shall have been provided to you.
(i) FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(j) The “lock-up” agreements, each substantially in the form of Exhibit D hereto, between you and Genco and each officer and director of the Company relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date. The several obligations of the Underwriters to purchase Optional Shares hereunder are subject to the delivery to you on the applicable Option Closing Date of such documents as you may reasonably request with respect to the good standing of the Company, the due authorization and issuance of the Optional Shares to be sold on such Option Closing Date and other matters related to the issuance of such Optional Shares.
Appears in 2 contracts
Samples: Underwriting Agreement (Juniper Networks Inc), Underwriting Agreement (Juniper Networks Inc)
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Company or any of the securities of the Company or any of its subsidiaries or in the rating outlook for the Company by any “nationally recognized statistical rating organization,” as such term is defined for purposes of Section 15c3-1(c)(2)(vi)(FRule 436(g)(2) under the Exchange Securities Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus as of the date of this Agreement that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Offered Shares Securities on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters Prospectus shall have received been filed with the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for such filing by the rules and regulations under the Securities Act; the final term sheet substantially in the form of Schedule I hereto, and any material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act shall have been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the Closing Date an opinion and statement part of Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP, outside counsel for the Company, dated the Closing Date, Commission shall have been complied with to the effect set forth in Exhibit A heretoyour reasonable satisfaction.
(d) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxxx P.CXxxxx Day, Xxxxxxxx Islands outside counsel for the Company, dated the Closing Date, to in the effect set forth in form attached hereto as Exhibit B hereto.I;
(e) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxx LLPXxxxx Day, special U.S. maritime environmental counsel and Liberian Japanese counsel for the Company, dated the Closing Date, to in the effect set forth in form attached hereto as Exhibit C hereto.II;
(f) The Underwriters shall have received on the Closing Date an opinion and statement of XxxxxxA&L Goodbody, special Irish counsel for the Company, dated the Closing Date, in the form attached hereto as Exhibit III;
(g) The Underwriters shall have received on the Closing Date an opinion of Xxxxx X. Xxxxxxxxx, Chief Legal Officer of the Company, dated the Closing Date, in the form attached hereto as Exhibit IV;
(h) The Underwriters shall have received on the Closing Date an opinion of Xxxxxxx Xxxxxxx & Xxxxxxx Xxxxxxxx LLP, counsel for the Underwriters, dated the Closing Date, with respect to such matters as you may be requested by the Underwriters.reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;
(gi) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Deloitte Ernst & Touche Young LLP, an independent registered public accountantsaccounting firm, 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, the Time of Sale Prospectus and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-cut off date” not earlier than the date hereof.
(h) The Offered Shares shall have been approved for listing on the NYSE, and satisfactory evidence thereof shall have been provided to you.
(i) FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(j) The “lock-up” agreements, each substantially in the form of Exhibit D A hereto, between you and Genco all of the executive officers and each officer and director directors of the Company listed on Schedule IV hereto relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date. .
(k) The several obligations Underlying Securities issuable upon conversion of the Underwriters to purchase Optional Shares hereunder are Securities shall have been approved for supplemental listing on NASDAQ, subject to the delivery to you notice of issuance.
(l) The Securities shall be eligible for clearance and settlement through DTC.
(m) The Underwriters shall have received on the applicable Option Closing Date of such documents as you may reasonably request with respect to the good standing of the Company, the due authorization and issuance of the Optional Shares to be sold on such Option Closing Date Securities and other matters related to the issuance of the Securities. The several obligations of the Underwriters to purchase Additional Securities hereunder are subject to delivery to you on the applicable Option Closing Date of each of the documents referred to above dated as of such Optional SharesOption Closing Date (except that insofar as any documents relate to Securities, they may be limited to covering only Additional Securities).
Appears in 2 contracts
Samples: Underwriting Agreement (Sandisk Corp), Underwriting Agreement (Sandisk Corp)
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters to purchase Underwritten Securities pursuant to the Terms Agreement are subject to the following conditions:
(a) Subsequent to the execution and delivery of this the Terms Agreement and prior to the Closing Date:
(i) there shall not have occurred occurred, since the date of the Terms Agreement, any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Company or any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined for purposes in Section 3(a)(62) of Section 15c3-1(c)(2)(vi)(F) under the Exchange Act; and
(ii) there shall not have occurred occurred, since the date of the Terms Agreement, any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus as of the date of this Agreement that, in your the Underwriters’ judgment, is material and adverse and that makes it, in your the Underwriters’ judgment, impracticable to market proceed with the Offered Shares offering or delivery of the Securities on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an opinion and statement of Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLPletter of, outside counsel for the Company, dated the Closing Date, to substantially in the effect set forth in Exhibit A heretoforms contemplated by the Terms Agreement.
(d) The Underwriters Company shall have received on requested and caused the Closing Date an opinion General Counsel of Xxxxxx & Xxxxxxx P.C, Xxxxxxxx Islands counsel for the CompanyCompany to furnish the Representatives his opinion, dated the Closing Date, to substantially in the effect set forth in Exhibit B heretoforms contemplated by the Terms Agreement.
(e) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxx LLP, special U.S. maritime environmental counsel and Liberian counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit C hereto.
(f) The Underwriters shall have received on the Closing Date an opinion and statement of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel for the Underwriters, dated the Closing Date, with respect to such the issuance and sale of the Underwritten Securities, the Time of Sale Prospectus and the Prospectus (as amended or supplemented at the Closing Date) and other related matters as the Representatives may be requested by reasonably require, and the UnderwritersCompany shall have furnished to such counsel such documents as they request for the purpose of enabling it to pass upon such matters.
(gf) The Underwriters shall have received, on each the date of the date hereof Terms Agreement and the Closing Date, a letter letter, dated the date hereof of the Terms Agreement or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Deloitte & Touche LLP, the independent public accountantsaccountants to the Company, 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, the Time of Sale Prospectus and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereofof the Terms Agreement.
(g) The Underwriters shall have received, on the date of the Terms Agreement and the Closing Date, a letter, dated the date of the Terms Agreement or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from the independent public accountants to the Target, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial information contained in the Registration Statement, the Time of Sale Prospectus and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date of the Terms Agreement.
(h) The Offered Shares Underwriters shall have been approved for listing received, on the NYSE, and satisfactory evidence thereof shall have been provided to you.
(i) FINRA shall have raised no objection to the fairness and reasonableness date of the underwriting terms Terms Agreement and arrangements.
(j) The “lock-up” agreements, each substantially in the form of Exhibit D hereto, between you and Genco and each officer and director of the Company relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date. The several obligations , a certificate, dated the date of the Underwriters Terms Agreement or the Closing Date, as the case may be, in form and substance satisfactory to purchase Optional Shares hereunder are subject to certain Underwriters, from the delivery to you on Chief Financial Officer of the applicable Option Closing Date of such documents as you may reasonably request Company, with respect to the good standing of financial information contained in the CompanyRegistration Statement, the due authorization Time of Sale Prospectus and issuance of the Optional Shares to be sold on such Option Closing Date and other matters related to the issuance of such Optional SharesProspectus.
Appears in 2 contracts
Samples: Underwriting Agreement, Terms Agreement (Interpublic Group of Companies, Inc.)
Conditions to the Underwriters’ Obligations. The several obligations obligation of the Underwriters to purchase and pay for the Securities on the Closing Date are subject to the accuracy of the representations and warranties on the part of the Company contained herein or in certificates of any officer or other representative of the Company and delivered pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following further conditions:
(a) the Registration Statement shall have become effective not later than 5:00 p.m. (New York City time) on the date hereof.
(b) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there no order suspending the effectiveness of the Registration Statement shall not have occurred any downgradingbe in effect, nor shall any notice have been given no order preventing or suspending the use of any intended preliminary prospectus or potential downgrading the Prospectus or of any review amendment or supplement thereto has been issued, and no proceedings for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company those purposes or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined for purposes of pursuant to Section 15c3-1(c)(2)(vi)(F) 8A under the Exchange ActSecurities Act shall be pending before or threatened by the Commission; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiariesCompany, taken as a wholewhether or not arising in the ordinary course of business, from that set forth in the Time of Sale Prospectus as of the date of this Agreement that, in your the Representatives’ judgment, is material and adverse and that makes it, in your the Representatives’ judgment, impracticable to market the Offered Shares Securities on the terms and in the manner contemplated in the Time of Sale Prospectus.
(bc) The Underwriters Representatives shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer the Chief Executive Officer or the Chief Financial Officer of the Company, to the effect set forth in Section 5(a)(i5(b) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(cd) The Underwriters Representatives shall have received on the Closing Date an opinion and statement negative assurance letter of Xxxxxx Xxxxx Xxxxxxxx Dxxxx Xxxx & Xxxxxxx Wxxxxxxx LLP, outside counsel for the Company, dated the Closing Date, in a form reasonably acceptable to the effect set forth in Exhibit A hereto.
(d) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxxx P.C, Xxxxxxxx Islands counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit B heretoRepresentatives.
(e) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxx LLP, special U.S. maritime environmental counsel and Liberian counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit C hereto.
(f) The Underwriters Representatives shall have received on the Closing Date an opinion and statement negative assurance letter of Xxxxxx, Xxxxx & Xxxxxxx Sidley Austin LLP, counsel for the Underwriters, dated the Closing Date, with respect in a form reasonably acceptable to such matters as may be requested by the UnderwritersRepresentatives.
(gf) The Underwriters Representatives shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the UnderwritersRepresentatives, from Deloitte & Touche LLPWithum, independent public accountants, 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, the Time of Sale Prospectus and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
(hg) The Offered Shares Company shall have been approved for listing on the NYSE, and satisfactory evidence thereof shall have been provided to you.
(i) FINRA shall have raised no objection delivered to the fairness and reasonableness Underwriters executed copies of the underwriting terms Transaction Agreements and arrangements.
(j) The “lock-up” agreements, each substantially in the form of Exhibit D hereto, between you and Genco Insider Letter and each officer and director of the Company relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date. .
(h) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(i) The several Securities shall have been duly listed, and admitted and authorized for trading, on Nasdaq, subject to notice of issuance, satisfactory evidence of which shall have been provided to the Representatives.
(j) Prior to the Closing Date, the Company shall have caused proceeds from the Private Placement Warrants sold by the Company to the Sponsor on the Closing Date to be deposited into the Trust Account such that the cumulative amount deposited into the Trust Account as of the Closing Date shall equal the product of the number of Securities sold on the Closing Date and the Public Offering Price per Unit.
(k) No order preventing or suspending the sale of the Securities in any jurisdiction designated by the Representatives pursuant to Section 6(j) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(l) Counsel for the Underwriters shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to render the opinions or make the statements requested by the Underwriters, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the covenants, obligations or conditions, contained herein; and all material proceedings taken by the Company in connection with the offer and sale of the Securities as contemplated herein shall be satisfactory in form and substance to the Representatives and counsel to the Underwriters.
(m) The obligation of the Underwriters to purchase Optional Shares Additional Securities hereunder are subject to the delivery to you the Representatives on the applicable Option Closing Date of the following:
(i) a certificate, dated the Option Closing Date and signed by the Chief Executive Officer or the Chief Financial Officer of the Company, confirming that the certificate delivered on the Closing Date pursuant to Section 5(c) hereof remains true and correct as of such Option Closing Date;
(ii) an opinion and negative assurance letter of Dxxxx Xxxx & Wxxxxxxx LLP, outside counsel for the Company, dated the Option Closing Date, relating to the Additional Securities to be purchased on such Option Closing Date in a form reasonably acceptable to the Representatives;
(iii) an opinion of Sidley Austin LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Additional Securities to be purchased on such Option Closing Date in a form reasonably acceptable to the Representatives;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Withum, independent public accountants, substantially in the same form and substance as the letter furnished to the Representatives pursuant to Section 5(f) hereof; provided that the letter delivered on the Option Closing Date shall use a “cut-off date” not earlier than three (3) business days prior to such Option Closing Date; and
(v) such other documents as you the Underwriters may reasonably request with respect to the good standing of the Company, the due authorization and issuance of the Optional Shares Additional Securities to be sold on such Option Closing Date and other matters related to the issuance of such Optional SharesAdditional Securities.
Appears in 2 contracts
Samples: Underwriting Agreement (Bilander Acquisition Corp.), Underwriting Agreement (Galliot Acquisition Corp.)
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Company or any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined for purposes in Section 3(a)(62) of Section 15c3-1(c)(2)(vi)(F) under the Exchange Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus as of the date of this Agreement that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Offered Shares Securities on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an opinion and statement negative assurance letter of Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx Xxxxx LLP, outside counsel for the Company, substantially in the form of Exhibits A-1 and A-2 dated the Closing Date, to the effect set forth in Exhibit A hereto.
(d) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxxx P.Cthe Vice President, Xxxxxxxx Islands counsel Corporate Secretary for the Company, substantially in the form of Exhibit B dated the Closing Date, to the effect set forth in Exhibit B hereto.
(e) The Underwriters shall have received on the Closing Date an opinion and negative assurance letter of Xxxxxx Xxxxx Xxxx & Xxxxxx LLP, special U.S. maritime environmental counsel and Liberian counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit C hereto.
(f) The Underwriters shall have received on the Closing Date an opinion and statement of Xxxxxx, Xxxxx & Xxxxxxx Xxxxxxxx LLP, counsel for the Underwriters, dated the Closing Date, with respect to such matters as may be requested by the UnderwritersUnderwriters shall request.
(gf) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance reasonably satisfactory to the Underwriters, from Deloitte Ernst & Touche Young LLP, registered independent public accountantsaccountants for the Company, 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, the Time of Sale Prospectus and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
(h) The Offered Shares shall have been approved for listing on the NYSE, and satisfactory evidence thereof shall have been provided to you.
(i) FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(j) The “lock-up” agreements, each substantially in the form of Exhibit D hereto, between you and Genco and each officer and director of the Company relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date. The several obligations of the Underwriters to purchase Optional Shares hereunder are subject to the delivery to you on the applicable Option Closing Date of such documents as you may reasonably request with respect to the good standing of the Company, the due authorization and issuance of the Optional Shares to be sold on such Option Closing Date and other matters related to the issuance of such Optional Shares.
Appears in 2 contracts
Samples: Underwriting Agreement (Grainger W W Inc), Underwriting Agreement (Grainger W W Inc)
Conditions to the Underwriters’ Obligations. The several obligations obligation of the Underwriters to purchase and pay for the Securities on the Closing Date are subject to the accuracy of the representations and warranties on the part of the Company contained herein or in certificates of any officer or other representative of the Company and delivered pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following further conditions:
(a) the Registration Statement shall have become effective not later than [__________] (New York City time) on the date hereof.
(b) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there no order suspending the effectiveness of the Registration Statement shall not have occurred any downgradingbe in effect, nor shall any notice have been given no order preventing or suspending the use of any intended preliminary prospectus or potential downgrading the Prospectus or of any review amendment or supplement thereto has been issued, and no proceedings for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company those purposes or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined for purposes of pursuant to Section 15c3-1(c)(2)(vi)(F) 8A under the Exchange ActSecurities Act shall be pending before or threatened by the Commission; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiariesCompany, taken as a wholewhether or not arising in the ordinary course of business, from that set forth in the Time of Sale Prospectus as of the date of this Agreement that, in your the Representativess’ judgment, is material and adverse and that makes it, in your the Representatives’ judgment, impracticable to market the Offered Shares Securities on the terms and in the manner contemplated in the Time of Sale Prospectus.
(bc) The Underwriters Representatives shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer the Chief Executive Officer or the Chief Financial Officer of the Company, to the effect set forth in Section 5(a)(i5(b) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(cd) The Underwriters Representatives shall have received on the Closing Date an opinion and statement negative assurance letter of Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx Xxxxx LLP, outside counsel for the Company, dated the Closing Date, in a form acceptable to the effect set forth in Exhibit A heretoRepresentatives.
(de) The Underwriters Representatives shall have received on the Closing Date an opinion and negative assurance letter of Xxxxxx & Xxxxxxx P.CCalder LLP, Xxxxxxxx Cayman Islands counsel for the Company, dated the Closing Date, in a form acceptable to the effect set forth in Exhibit B hereto.
(e) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxx LLP, special U.S. maritime environmental counsel and Liberian counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit C heretoRepresentatives.
(f) The Underwriters Representatives shall have received on the Closing Date an opinion and statement negative assurance letter of Xxxxxx, Xxxxx White & Xxxxxxx Case LLP, counsel for the Underwriters, dated the Closing Date, with respect in a form acceptable to such matters as may be requested by the UnderwritersRepresentatives.
(g) The Underwriters Representatives shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the UnderwritersRepresentatives, from Deloitte & Touche LLPXxxxxx, independent public accountants, 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, the Time of Sale Prospectus and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
(h) The Offered Shares Company shall have been approved for listing on the NYSE, and satisfactory evidence thereof shall have been provided to you.
(i) FINRA shall have raised no objection delivered to the fairness and reasonableness Representatives executed copies of the underwriting terms Transaction Agreements and arrangements.
(j) The “lock-up” agreements, each substantially in the form of Exhibit D hereto, between you and Genco Insider Letter and each officer and director of the Company relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date. The several obligations of the Underwriters to purchase Optional Shares hereunder are subject to the delivery to you on the applicable Option Closing Date of such documents as you may reasonably request .
(i) FINRA shall not have raised any objection with respect to the good standing fairness or reasonableness of the Companyunderwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall have been duly listed, and admitted and authorized for trading, on Nasdaq, subject to notice of issuance, satisfactory evidence of which shall have been provided to the Representatives.
(k) At least one business day prior to the Closing Date, the due authorization and issuance Company shall have caused proceeds from the Private Placement Warrants sold by the Company to the Sponsor on the Closing Date to be deposited into the Trust Account such that the cumulative amount deposited into the Trust Account as of the Optional Shares to be Closing Date shall equal the product of the number of Securities sold on such Option the Closing Date and other matters related the Public Offering Price per Unit.
(l) No order preventing or suspending the sale of the Securities in any jurisdiction designated by the Representatives pursuant to Section 6(g) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(m) Counsel for the Underwriters shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to render the opinions or make the statements requested by the Representatives, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the covenants, obligations or conditions, contained herein; and all proceedings taken by the Company in connection with the offer and sale of the Securities as contemplated herein shall be satisfactory in form and substance to the issuance of such Optional SharesRepresentatives and counsel to the Underwriters.
Appears in 2 contracts
Samples: Underwriting Agreement (Velocity Merger Corp.), Underwriting Agreement (Velocity Merger Corp.)
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice public announcement have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any the Guarantor or financial strength or claims-paying ability of its subsidiaries the Company or the Guarantor by any “nationally recognized statistical rating organization,” as such term is defined for purposes of in Section 15c3-1(c)(2)(vi)(F3(a)(62) under the Exchange Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, material adverse change in the condition, financial or otherwise, condition or in the earnings, business or operations of the Company Guarantor and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus as of the date of this Agreement that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Offered Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Underwriters shall have received on the Closing Date a certificatecertificates, dated the Closing Date and signed by an executive officer of each of the CompanyCompany and the Guarantor, to the effect set forth in Section 5(a)(i) above and to the effect that the representations and warranties of the Company and the Guarantor contained in this Agreement are true and correct as of the Closing Date and that each of the Company and the Guarantor has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officer Each of the officers signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an opinion and statement letter of Weil, Gotshal & Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP, outside U.S. counsel for the CompanyCompany and the Guarantor, dated the Closing Date, to the effect as set forth in Exhibit A heretoExhibits A-1 and A-2.
(d) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx Xxxxxxx Xxxx & Xxxxxxx P.CXxxxxxxxx LLP, Xxxxxxxx Islands special U.S. regulatory counsel for the CompanyCompany and the Guarantor, dated the Closing Date, to the effect as set forth in Exhibit B hereto.B.
(e) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxx LLPXxxx X. Xxxxx, special U.S. maritime environmental counsel and Liberian counsel for Esq., the CompanyGuarantor’s General Counsel, dated the Closing Date, to the effect as set forth in Exhibit C hereto.C.
(f) The Underwriters shall have received on the Closing Date an opinion and statement of Xxxxxx, Xxxxx Xxxx & Xxxxxxx Xxxxxxxx LLP, counsel for the Underwriters, dated the Closing Date, with respect to such matters as may the Underwriters shall request. The opinions of Weil, Gotshal & Xxxxxx LLP, Xxxxxxx Xxxx & Xxxxxxxxx LLP and Xxxx X. Xxxxx, Esq., described in Sections 5(c) - 5(e) above shall be requested by rendered to the UnderwritersUnderwriters at the request of the Company and/or the Guarantor and shall so state therein.
(g) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Deloitte & Touche KPMG LLP, an independent registered public accountantsaccounting firm, 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, the Time of Sale Prospectus and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
(h) The Offered Shares Underwriters shall have been approved for listing received, on the NYSE, and satisfactory evidence thereof shall have been provided to you.
(i) FINRA shall have raised no objection to the fairness and reasonableness each of the underwriting terms date hereof and arrangements.
(j) The “lock-up” agreements, each substantially in the form of Exhibit D hereto, between you and Genco and each officer and director of the Company relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date. The several obligations , a certificate of Xxxxx X. Xxxx, the Underwriters to purchase Optional Shares hereunder are subject Guarantor’s Vice President and Controller, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the delivery to you on the applicable Option Closing Date of such documents as you may reasonably request with respect to the good standing of the Company, the due authorization and issuance of the Optional Shares to be sold on such Option Closing Date and other matters related to the issuance of such Optional SharesUnderwriters.
Appears in 2 contracts
Samples: Underwriting Agreement (Genworth Financial Inc), Underwriting Agreement (Genworth Financial Inc)
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities of or the Company Company’s financial strength or any of its subsidiaries claims-paying ability by any “nationally recognized statistical rating organization,” as such term is defined for purposes of in Section 15c3-1(c)(2)(vi)(F3(a)(62) under the Exchange Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, material adverse change in the condition, financial or otherwise, condition or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus as of the date of this Agreement that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Offered Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an opinion and statement letter of Weil, Gotshal & Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP, outside U.S. counsel for the Company, dated the Closing Date, to the effect as set forth in Exhibit A heretoExhibits A-1 and A-2.
(d) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx Xxxxx & Xxxxxxx P.CXxXxxxx LLP, Xxxxxxxx Islands special U.S. regulatory counsel for the Company, dated the Closing Date, to the effect as set forth in Exhibit B hereto.B.
(e) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxx LLPXxxx X. Xxxxx, special U.S. maritime environmental counsel and Liberian counsel for Esq., the Company’s General Counsel, dated the Closing Date, to the effect as set forth in Exhibit C hereto.C.
(f) The Underwriters shall have received on the Closing Date an opinion and statement of Xxxxxx, Xxxxx Xxxx & Xxxxxxx Xxxxxxxx LLP, counsel for the Underwriters, dated the Closing Date, with respect to such matters as may the Underwriters shall request. The opinions of Weil, Gotshal & Xxxxxx LLP, Xxxxx & XxXxxxx LLP and Xxxx X. Xxxxx, Esq., described in Sections 5(c) - 5(e) above shall be requested by rendered to the UnderwritersUnderwriters at the request of the Company and shall so state therein.
(g) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Deloitte & Touche KPMG LLP, an independent registered public accountantsaccounting firm, 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, the Time of Sale Prospectus and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
(h) The Offered Shares Underwriters shall have been approved for listing received, on the NYSE, and satisfactory evidence thereof shall have been provided to you.
(i) FINRA shall have raised no objection to the fairness and reasonableness each of the underwriting terms date hereof and arrangements.
(j) The “lock-up” agreements, each substantially in the form of Exhibit D hereto, between you and Genco and each officer and director of the Company relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date. The several obligations , a certificate of Xxx X. Xxxxxx, the Underwriters to purchase Optional Shares hereunder are subject Company’s Vice President and Controller, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the delivery to you on the applicable Option Closing Date of such documents as you may reasonably request with respect to the good standing of the Company, the due authorization and issuance of the Optional Shares to be sold on such Option Closing Date and other matters related to the issuance of such Optional SharesUnderwriters.
Appears in 2 contracts
Samples: Underwriting Agreement (Genworth Financial Inc), Underwriting Agreement (Genworth Financial Inc)
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined for purposes in Section 3(a)(62) of Section 15c3-1(c)(2)(vi)(F) under the Exchange Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus as of the date of this Agreement that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Offered Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i6(a)(i) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an opinion opinions and statement a letter of Xxxxxx Xxxxx Xxxxxxxx Skadden, Arps, Slate, Xxxxxxx & Xxxxxxx Xxxx LLP, outside counsel for the Company, dated the Closing Date, to in or substantially in the effect form set forth in Exhibit A Exhibits X-0, X-0 and B-3 hereto.
(d) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxxx P.CXxxxx, Xxxxxxxx Islands counsel for General Counsel of the CompanyBank, dated the Closing Date, to in or substantially in the effect form set forth in Exhibit B C hereto.
(e) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx Xxxxxxx Xxxxxxx & Xxxxxx Xxxxxxxx LLP, special U.S. maritime environmental counsel and Liberian counsel for certain Selling Stockholders, in or substantially in the Company, dated the Closing Date, to the effect form set forth in Exhibit C D hereto, and opinions for the other Selling Stockholders as the Representatives may request in form and substance reasonably satisfactory to the Representatives.
(f) The Underwriters shall have received on the Closing Date an opinion and statement of Xxxxxx, Xxxxx Xxxx & Xxxxxxx Xxxxxxxx LLP, counsel for the Underwriters, dated the Closing Date, with respect in form and substance reasonably satisfactory to such matters as may the Representatives. The opinions of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP and the other persons described in Sections 6(c), 6(d) and 6(e) above shall be requested by rendered and addressed to the Underwriters.
(g) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Deloitte & Touche KPMG LLP, independent public accountants, 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, the Time of Sale Prospectus and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
(h) The Offered Shares shall have been approved for listing on the NYSE, and satisfactory evidence thereof shall have been provided to you.
(i) FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(j) The “lock-up” agreements, each substantially in the form of Exhibit D A hereto, between you and Genco certain stockholders, officers and each officer and director directors of the Company listed on Schedule IV hereto, relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date.
(i) The Underwriters shall have received on the Closing Date a certificate of the Chief Financial Officer of the Company, in her capacity as such officer only, dated the Closing Date, substantially in the form of Exhibit E hereto. The several obligations of the Underwriters to purchase Optional Additional Shares hereunder are subject to the delivery to you on the applicable Option Closing Date of such documents as you may reasonably request with respect to the good standing of the Company, the due authorization and issuance of the Optional Additional Shares to be sold on such Option Closing Date and other matters related to the issuance of such Optional Additional Shares.
Appears in 2 contracts
Samples: Underwriting Agreement (BankUnited, Inc.), Underwriting Agreement (BankUnited, Inc.)
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters to purchase and pay for the Firm Company Shares and Units representing the Firm Securities are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined for purposes of Section 15c3-1(c)(2)(vi)(FRule 436(g)(2) under the Exchange Securities Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus as of the date of this Agreement that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Offered Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Company on behalf of the Company, to the effect set forth in Section 5(a)(i6(a)(i) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an opinion and statement of Xxxxxx Xxxxx Xxxxxxxx Xxxx & Xxxxxxx LLPXxxxxxxx, outside counsel for the Company, dated the Closing Date, to covering the effect matters set forth in Exhibit A on Schedule IV hereto.
(d) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx Xxxxxxx Xxxxxxx & Xxxxxxx P.CXxxxxxxx LLP, Xxxxxxxx Islands counsel for the CompanySelling Shareholders, dated the Closing Date, to covering the effect matters set forth in Exhibit B on Schedule V hereto.
(e) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx Xxxxx & Xxxxxx Bockius LLP, special U.S. maritime environmental counsel and Liberian counsel for to the CompanySelling Shareholders, dated the Closing Date, to covering the effect matters set forth in Exhibit C on Schedule VI hereto.
(f) The Underwriters shall have received on the Closing Date an opinion and statement of the General Counsel of the Company, dated the Closing Date, covering the matters set forth on Schedule VII hereto.
(g) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Xxxxx & Xxxxxxx LLPProfessional Corporation, counsel for the Underwriters, dated the Closing Date, with respect covering the matters set forth on Schedule VIII hereto. The opinions of Xxxxx Xxxx & Xxxxxxxx, Xxxxxxx Xxxxxxx & Xxxxxxxx LLP and Xxxxxx Xxxxx & Bockius LLP provided for in Sections 6(c), 6(d) and 6(e) above shall be rendered to such matters the Underwriters at the request of the Company or one or more of the Selling Shareholders, as the case may be requested by the Underwritersbe, and shall so state therein.
(gh) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Deloitte & Touche LLP, independent public accountants, 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, the Time of Sale Prospectus and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
(h) The Offered Shares shall have been approved for listing on the NYSE, and satisfactory evidence thereof shall have been provided to you.
(i) FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(j) The “lock-up” agreementsagreements (the “Lock-Up Agreements”), each substantially in the form of Exhibit D A hereto, between you and Genco certain shareholders, officers and each officer and director directors of the Company relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date.
(j) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof and the Closing Date from the Chief Financial Officer of the Company covering the matters set forth on Schedule IX hereto. The several obligations of the Underwriters to purchase Optional Additional Shares hereunder are subject to the delivery to you on the applicable Option Closing Date of such documents as you may reasonably request with respect to the good standing of the Company, the due authorization and issuance of the Optional Additional Shares to be sold on such Option Closing Date and other matters related to the issuance of such Optional Additional Shares.
Appears in 2 contracts
Samples: Underwriting Agreement (Palm Inc), Underwriting Agreement (Palm Inc)
Conditions to the Underwriters’ Obligations. The obligations of the Sellers to sell the Shares to the Underwriters and the several obligations of the Underwriters to purchase and pay for the Shares on the Closing Date are subject to the condition that the Registration Statement shall have become effective not later than 4:00 PM (New York City time) on the date hereof. The several obligations of the Underwriters are subject to the following further conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “"nationally recognized statistical rating organization,” " as such term is defined for purposes of Section 15c3-1(c)(2)(vi)(FRule 436(g)(2) under the Exchange Securities Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus as of the date of this Agreement (excluding any amendments or supplements thereto) that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Offered Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i7(a)(i) above and to the effect that (i) the representations and warranties of the Company contained in this Agreement qualified as to materiality are true and correct as of the Closing Date Date, (ii) the representations and warranties of the Company contained in this Agreement that are not so qualified as to materiality are true and correct in all material respects as of the Closing Date, (iii) Whitney and each of the Selling Stockholders is the holder of record of the Shares to be sold by Whitney or such Selling Stockholder, as applicable, and there are no security interests, claims, liens, equities or other encumbrances with respect to such Shares noted on the stock ledger of the Company, (iv) the issuance of the Shares to be sold by the Company will not be subject to any preemptive rights; (v) after due inquiry, such executive officer does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which any of the properties of the Company or any of its subsidiaries is subject that are required to be described in the Registration Statement or the Prospectus and are not so described or of any statutes, regulations, contracts or other documents that are required to be described in the Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement that are not described or filed as required; and (vi) that the Company has complied in all material respects with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an opinion and statement of Xxxxxx Xxxxx Xxxxxx, Xxxx & Xxxxxxxx & Xxxxxxx LLP, outside special counsel for the Company, dated the Closing Date, covering the matters referred to the effect set forth in Exhibit Annex A heretohereof.
(d) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxxx P.CXxxxx X. Xxxxxx, Xxxxxxxx Islands counsel for the CompanyWhitney, dated the Closing Date, covering the matters referred to the effect set forth in Exhibit Annex B heretohereof.
(e) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx each of (i) Xxxxxx, Xxxx & Xxxxxx Xxxxxxxx LLP, special U.S. maritime environmental counsel and Liberian outside counsel for the Company, dated the Closing Date, and (ii) Xxxxxx & Xxxxxxx LLP, counsel for the Underwriters, dated the Closing Date, covering the matters referred to the effect set forth in Exhibit Annex C heretohereof.
(f) The Underwriters shall have received on the Closing Date an opinion and statement of Xxxxxx, Xxxxx Xxxxxx & Xxxxxxx LLP, counsel for the Underwriters, dated the Closing Date, covering the matters referred to in Annex D hereof. With respect to Sections 7(c), (e) and (f) above, Xxxxxx, Xxxx & Xxxxxxxx LLP and Xxxxxx & Xxxxxxx LLP may state that their opinions and beliefs are based upon their participation in the preparation of the Registration Statement, the Time of Sale Prospectus and the Prospectus and any amendments or supplements thereto and review and discussion of the contents thereof, but are without independent check or verification, except as specified. With respect to Section 7(d) above, Xxxxx X. Xxxxxx may, with respect to factual matters and to the extent such matters counsel deems appropriate, rely upon the representations of Whitney contained herein. The opinions of Xxxxxx, Xxxx & Xxxxxxxx LLP described in Section 7(c) above and of Xxxxx X. Xxxxxx described in Section 7(d) above shall be rendered to the Underwriters at the request of the Company or one or more of the Selling Stockholders, as the case may be requested by the Underwritersbe, and shall so state therein.
(g) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Deloitte Ernst & Touche Young LLP, independent public accountants, 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, the Time of Sale Prospectus and the Prospectus; provided that the letter delivered on the Closing Date shall use a “"cut-off date” " not earlier than the date hereof.
(h) The Offered Shares shall have been approved for listing on the NYSE, and satisfactory evidence thereof shall have been provided to you.
(i) FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(j) The “"lock-up” " agreements, each substantially in the form of Exhibit D A hereto, between you and Genco certain stockholders, officers and each officer and director directors of the Company relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date. The several obligations of the Underwriters to purchase Optional Additional Shares hereunder are subject to the delivery to you on the applicable Option Closing Date of such documents as you may reasonably request with respect to the good standing of the Company, the due authorization and issuance of the Optional Additional Shares to be sold on such Option Closing Date and other matters related to the issuance of such Optional Additional Shares.
Appears in 2 contracts
Samples: Underwriting Agreement (Aecom Technology Corp), Underwriting Agreement (Aecom Technology Corp)
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters Selling Shareholders to sell the Shares to the Underwriter and the obligations of the Underwriter to purchase and pay for the Shares on the Closing Date are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined for purposes of Section 15c3-1(c)(2)(vi)(F) under the Exchange Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time Prospectus (exclusive of Sale Prospectus as of any amendments or supplements thereto subsequent to the date of this Agreement Agreement) that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Offered Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Underwriters Underwriter shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i6(a) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an opinion and statement of Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP, outside counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit A hereto.
(d) The Underwriters Underwriter shall have received on the Closing Date an opinion of Xxxxxx Ropes & Xxxxxxx P.CXxxx LLP, Xxxxxxxx Islands outside counsel for the CompanyCompany and counsel to the Selling Shareholders, dated the Closing Date, in the form attached hereto as Exhibit 6(c). Such opinion shall be rendered to the effect set forth in Exhibit B heretoUnderwriter at the request of the Company and the Selling Shareholders and shall so state therein.
(ed) The Underwriters Underwriter shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxx Xxxx and Xxxx LLP, special U.S. maritime environmental counsel and Liberian counsel for the CompanyUnderwriter, dated the Closing Date, covering the matters referred to in paragraph 2 (but only as to the effect set forth second sentence thereof), paragraph 3, the third-to-last paragraph and the penultimate paragraph (but only as to the statements in the Prospectus under "Underwriter") of the opinion attached hereto as Exhibit C hereto6(c).
(fe) The Underwriters shall have received on the Closing Date an opinion and statement of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel for the Underwriters, dated the Closing Date, with respect to such matters as may be requested by the Underwriters.
(g) The Underwriters Underwriter shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the UnderwritersUnderwriter, from Deloitte & Touche LLP, independent public accountants, containing statements and information of the type ordinarily included in accountants’ “' "comfort letters” " to underwriters the Underwriter with respect to the financial statements and certain financial information contained in the Registration Statement, the Time of Sale Prospectus Statement and the Prospectus; provided PROVIDED that the letter delivered on the Closing Date shall use a “"cut-off date” " not earlier than the date hereof.
(h) The Offered Shares shall have been approved for listing on the NYSE, and satisfactory evidence thereof shall have been provided to you.
(i) FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(j) The “lock-up” agreements, each substantially in the form of Exhibit D hereto, between you and Genco and each officer and director of the Company relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date. The several obligations of the Underwriters to purchase Optional Shares hereunder are subject to the delivery to you on the applicable Option Closing Date of such documents as you may reasonably request with respect to the good standing of the Company, the due authorization and issuance of the Optional Shares to be sold on such Option Closing Date and other matters related to the issuance of such Optional Shares.
Appears in 2 contracts
Samples: Underwriting Agreement (Timberland Co), Purchase Agreement (Timberland Co)
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters Underwriter to purchase and pay for the Shares on the Closing Date are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries the Subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined for purposes in Section 3(a)(62) of Section 15c3-1(c)(2)(vi)(F) under the Exchange Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiariesthe Subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus as of the date of this Agreement that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Offered Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Underwriters Underwriter shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the CompanyCompany on its own behalf and as General Partner of the Operating Partnership, to the effect set forth in Section 5(a)(i6(a) above and to the effect that the representations and warranties of the Company Company, the General Partner and the Operating Partnership contained in this Agreement that are qualified by materiality are true and correct as of the Closing Date and those not so qualified are true and correct in all material respects as of the Closing Date and that the Company has Company, the General Partner and the Operating Partnership have complied in all material respects with all of the agreements and satisfied all of the conditions on its part their respective parts to be performed or satisfied hereunder on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters Underwriter shall have received on the Closing Date an opinion and statement 10b-5 letter of Xxxxxx Cravath, Swaine & Xxxxx Xxxxxxxx & Xxxxxxx LLP, outside counsel for the CompanyCompany and the Selling Shareholder, dated the Closing Date, with respect to the effect set forth matters identified in Exhibit A hereto.
(d) The Underwriters Underwriter shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxxx P.CLLP, Xxxxxxxx Islands counsel for the CompanyUnderwriter, dated the Closing Date, to covering such matters as the effect set forth in Exhibit B heretoUnderwriter may reasonably request.
(e) The Underwriters Underwriter shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxx Xxxxxxx LLP, special U.S. maritime environmental Maryland counsel and Liberian counsel for to the Company, dated the Closing Date, with respect to the effect set forth matters identified in Exhibit C B hereto.
(f) The Underwriters Underwriter shall have received on the Closing Date an opinion and statement of XxxxxxSkadden, Xxxxx Arps, Slate, Xxxxxxx & Xxxxxxx Xxxx LLP, special tax counsel for to the UnderwritersCompany, dated the Closing Date, with respect to such the matters as may be requested by the Underwritersidentified in Exhibit C hereto.
(g) The Underwriters Underwriter shall have received on the Closing Date a certificate of the General Counsel of the Company, dated the Closing Date, with respect to the matters identified in Exhibit D hereto.
(h) The Underwriter shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance reasonably satisfactory to the UnderwritersUnderwriter, from Deloitte & Touche LLP, independent public accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements of the Company and the Subsidiaries and certain financial information with respect to the Company and the Subsidiaries contained in the Registration Statement, the Time of Sale Prospectus and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
(hi) The Offered Underwriter shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance reasonably satisfactory to the Underwriter, from RSM US LLP, independent public accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements of Cervalis and its subsidiaries and certain financial information with respect to Cervalis and its subsidiaries contained in the Registration Statements, the Time of Sale Prospectus and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
(j) On the Closing Date, the Shares shall have been approved for listing on the NYSE, and satisfactory evidence thereof shall have been provided to youNASDAQ.
(i) FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(j) The “lock-up” agreements, each substantially in the form of Exhibit D hereto, between you and Genco and each officer and director of the Company relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date. The several obligations of the Underwriters to purchase Optional Shares hereunder are subject to the delivery to you on the applicable Option Closing Date of such documents as you may reasonably request with respect to the good standing of the Company, the due authorization and issuance of the Optional Shares to be sold on such Option Closing Date and other matters related to the issuance of such Optional Shares.
Appears in 2 contracts
Samples: Underwriting Agreement (Cincinnati Bell Inc), Underwriting Agreement (CyrusOne Inc.)
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) Date there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible no material adverse change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined for purposes of Section 15c3-1(c)(2)(vi)(F) under the Exchange Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business business, prospects or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time Prospectus (exclusive of Sale Prospectus as of any amendments or supplements thereto subsequent to the date of this Agreement that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Offered Shares on the terms and Agreement) other than any downgrading in the manner contemplated in rating accorded any of the Time Company’s securities by any “nationally recognized statistical rating organization,” as such term is defined for purposes of Sale ProspectusRule 436(g)(2) under the Securities Act.
(b) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i5(a) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the such Closing Date and that the Company has complied in all material respects with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the such Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an opinion and statement of Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLPXxxx Xxxxxxxxx, outside general counsel for the Company, dated the Closing Date, in the form attached to the effect set forth in this Agreement as Exhibit A hereto.A.
(d) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx Xxxxx & Xxxxxxx P.COvery, Xxxxxxxx Islands outside Dutch counsel for the Company, dated the Closing Date, in the form attached to the effect set forth in this Agreement as Exhibit B hereto.B.
(e) The Underwriters shall have received on the Closing Date an opinion and a disclosure letter of Xxxxxx Xxxxx & Xxxxxx LLPXxxxx, special outside U.S. maritime environmental counsel and Liberian counsel for the Company, dated the Closing Date, in the forms attached to the effect set forth in Exhibit C heretothis Agreement as Exhibits C-1 and C-2, respectively.
(f) The Underwriters shall have received on the Closing Date an opinion and statement of XxxxxxXxxxx Xxxx & Xxxxxxxx, Xxxxx & Xxxxxxx LLP, outside U.S. counsel for the Underwriters, dated the Closing Date, with respect in the form attached to such matters this Agreement as may be requested by the Underwriters.Exhibit D.
(g) The Underwriters shall have receivedreceived on the Closing Date an opinion of Xxxxx, Xxxxxx & Xxxxxx, LLP, counsel for the Trustee, dated the Closing Date, in the form attached to this Agreement as Exhibit E.
(h) The Underwriters shall have received on each the date hereof, and on the Closing Date, a letter dated as of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may berespectively, in form and substance reasonably satisfactory to the Underwriters, from Deloitte Ernst & Touche LLPYoung, independent public accountants, 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, the Time of Sale Prospectus Statement and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
(h) The Offered Shares shall have been approved for listing on the NYSE, and satisfactory evidence thereof shall have been provided to you.
(i) FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(j) The “lock-up” agreements, each substantially in the form of Exhibit D hereto, between you and Genco and each officer and director of the Company relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date. The several obligations of the Underwriters to purchase Optional Shares Additional Securities hereunder are subject to the delivery to you on the applicable Option Closing Date of such documents as you may reasonably request with respect to the good standing of the Companycertificates, the due authorization opinions and issuance of the Optional Shares comfort letter required to be sold on such delivered pursuant to subsections (b) through, and including, (i) of this Section, all dated the applicable Option Closing Date and other matters related to the issuance of such Optional SharesDate.
Appears in 2 contracts
Samples: Underwriting Agreement (Aegon Nv), Underwriting Agreement (Aegon Nv)
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined for purposes of Section 15c3-1(c)(2)(vi)(F3(A)(62) under of the Exchange Act.; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus as of the date of this Agreement that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Offered Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i) above and to the effect that (i) the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and (i) that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an opinion and statement of Xxxxxx Xxxxx Xxxxxxxx Xxxxxxxxxx & Xxxxxxx LLPXxxxx, P.A., outside counsel for the Company, dated the Closing Date, to in the effect set forth in form attached hereto as Exhibit A hereto.A.
(d) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx Winthrop & Xxxxxxx P.CWeinstine, Xxxxxxxx Islands P.A., intellectual property counsel for to the Company, dated the Closing Date, to in the effect set forth in form attached hereto as Exhibit B hereto.B.
(e) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx Xxxxx Xxxx & Xxxxxx LLP, special U.S. maritime environmental counsel and Liberian counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit C hereto.
(f) The Underwriters shall have received on the Closing Date an opinion and statement of Xxxxxx, Xxxxx & Xxxxxxx Xxxxxxxx LLP, counsel for the Underwriters, dated the Closing Date, with covering the matters referred to in sections (v), (vi) and (viii) (but only as to the statements in each of the Time of Sale Prospectus and the Prospectus under “Description of Common Stock” and “Underwriting”) and section (xiii)(a) of Exhibit A attached hereto. With respect to such matters the separate section of the opinion letter referred to in section (xiii)(a) of Exhibit A, Xxxxx Xxxx & Xxxxxxxx LLP may state that their opinions and beliefs are based upon their participation in the preparation of the Registration Statement, the Time of Sale Prospectus and the Prospectus and any amendments or supplements thereto (other than the documents incorporated by reference) and upon review and discussion of the contents of the Registration Statement, the Time of Sale Prospectus and the Prospectus (including documents incorporated by reference), but are without independent check or verification, except as may specified. The opinion of Xxxxxxxxxx & Xxxxx, P.A., described in Section 5(c) above and in Exhibit A attached hereto shall be requested by rendered to the UnderwritersUnderwriters at the request of the Company and shall so state therein.
(gf) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Deloitte & Touche PricewaterhouseCoopers LLP, independent public accountants, 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, the Time of Sale Prospectus and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
(h) The Offered Shares shall have been approved for listing on the NYSE, and satisfactory evidence thereof shall have been provided to you.
(i) FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(jg) The “lock-up” agreements, each substantially in the form of Exhibit D C hereto, between you and Genco and each executive officer and director of the Company relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date. The several obligations of the Underwriters to purchase Optional Additional Shares hereunder are subject to the delivery to you on the applicable Option Closing Date of such documents as you may reasonably request with respect to the good standing of the Company, the due authorization and issuance of the Optional Additional Shares to be sold on such Option Closing Date and other matters related to the issuance of such Optional Additional Shares.
Appears in 1 contract
Samples: Underwriting Agreement (Cardiovascular Systems Inc)
Conditions to the Underwriters’ Obligations. The obligations of the Sellers and the several obligations of the Underwriters hereunder are subject to the condition that the Registration Statement shall have become effective not later than the date hereof. The several obligations of the Underwriters hereunder are subject to the following further conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company's securities of the Company or any of its subsidiaries by any “"nationally recognized statistical rating organization,” " as such term is defined for purposes of Section 15c3-1(c)(2)(vi)(FRule 436(g)(2) under the Exchange Securities Act; , and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations operations, of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus as of the date of this Agreement Registration Statement, that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Offered Shares on the terms and in the manner contemplated in the Time Prospectus (exclusive of Sale Prospectusany amendments or supplements thereto subsequent to the date of this Agreement).
(b) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(iclause (a)(i) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters No stop order suspending the effectiveness of the Registration Statement shall have received on the Closing Date an opinion be in effect and statement of Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP, outside counsel no proceedings for the Company, dated the Closing Datesuch purpose shall be pending before or, to the effect set forth in Exhibit A heretoknowledge of the Company or the Underwriters, threatened by the Commission.
(d) The Underwriters You shall have received on the Closing Date an opinion of Xxxxxx Barrxxx & Xxxxxxx P.CXcNaxxx, Xxxxxxxx Islands counsel xxunsel for the Company, dated the Closing Date, in the form attached hereto as Exhibit A. The opinion of Barrxxx & XcNagny shall be rendered to you at the effect set forth in Exhibit B heretorequest of the Company and shall so state therein.
(e) The Underwriters You shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxx LLPeach of [Names of counsel], special U.S. maritime environmental counsel and Liberian counsel for the CompanySelling Shareholders, dated the Closing Date, in the form attached hereto as Exhibits B-1 through B-7, respectively. The opinions of [Names of counsel], shall be rendered to the effect set forth in Exhibit C heretoUnderwriters at the request of the Selling Shareholders and shall so state therein.
(f) The Underwriters You shall have received on the Closing Date an opinion and statement of Xxxxxx, Xxxxx Shearman & Xxxxxxx LLPSterling, counsel for the Underwriters, dated the Closing Date, with respect to the Registration Statement and the Prospectus and such other related matters as you may be requested by the Underwritersreasonably request, and such counsel shall have received such documents and information as they may reasonably request to enable them to pass upon such matters.
(g) The Underwriters You shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or and the Closing Date, as the case may be, in form and substance satisfactory to the Underwritersyou, from Deloitte & Touche LLP, independent public accountants, 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, the Time of Sale Prospectus Statement and the Prospectus; provided that the letter delivered on the Closing Date shall use a “"cut-off date” " not earlier than the date hereof.
(h) The Offered Shares shall have been approved for listing on the NYSE, and satisfactory evidence thereof shall have been provided to you.
(i) FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(j) The “"lock-up” " agreements, each substantially in the form of Exhibit D heretoC hereto between you, between you certain shareholders, officers and Genco and each officer and director directors of the Company relating to sales and certain other dispositions of shares of Common Stock or certain other securitiesany securities convertible into or exercisable or exchangeable for such Common Stock, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date.
(i) You shall have received on the Closing Date certificates dated the Closing Date and signed by the Selling Shareholders or by attorneys-in-fact of the Selling Shareholders, to the effect that the representations and warranties of each such Selling Shareholder contained in this Agreement are true and correct as of the Closing Date and that each such Selling Shareholder has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date.
(j) The Company shall have complied with the provisions of Section 7(a) hereof with respect to the furnishing of Prospectuses on the business day next succeeding the date of this Agreement, in such quantities as you shall have reasonably requested.
(k) The Shares shall have been approved for quotation on the Nasdaq National Market System by the National Association of Securities Dealers, Inc. (the "NASD").
(l) You shall have received such other documents and certificates as are reasonably requested by you or your counsel. The several obligations of the U.S. Underwriters to purchase Optional Additional Shares hereunder are subject to the delivery to you the U.S. Representatives on the applicable Option Closing Date of such documents as you may reasonably request with respect to the good standing of the Company, the due authorization and issuance of the Optional Additional Shares to be sold on such Option Closing Date and other matters related to the issuance of such Optional the Additional Shares.
Appears in 1 contract
Conditions to the Underwriters’ Obligations. The obligations of the Company to sell the Shares to the Underwriters and the several obligations of the Underwriters to purchase and pay for the Shares on the Closing Date are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined for purposes of Section 15c3-1(c)(2)(vi)(FRule 436(g)(2) under the Exchange Securities Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus as (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement Agreement) that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Offered Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an opinion and statement of Xxxxxx Xxxxx (i) Xxxxx, Xxxxxxxx & Xxxxxxx Xxxxxxx, LLP, outside counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit A heretoA-1 and (ii) Xxxxxxx X. Xxxxxxx, Senior Vice President and General Counsel of the Company, dated the Closing Date, to the effect set forth in Exhibit A-2. Each such opinion shall be rendered to the Underwriters at the request of the Company and shall so state therein.
(d) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx Xxxxx Xxxx & Xxxxxxx P.CXxxxxxxx LLP, Xxxxxxxx Islands counsel for the CompanyUnderwriters, dated the Closing Date, to the effect set forth in Exhibit B hereto.B.
(e) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxx LLP, special U.S. maritime environmental counsel and Liberian counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit C hereto.
(f) The Underwriters shall have received on the Closing Date an opinion and statement of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel for the Underwriters, dated the Closing Date, with respect to such matters as may be requested by the Underwriters.
(g) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Deloitte Ernst & Touche Young LLP, independent public accountants, 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 or incorporated by reference into the Registration Statement, the Time of Sale Prospectus and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
(h) The Offered Shares shall have been approved for listing on the NYSE, and satisfactory evidence thereof shall have been provided to you.
(i) FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(jf) The “lock-up” agreements, each substantially in the form of Exhibit D C hereto, between you and Genco certain shareholders, officers and each officer and director directors of the Company relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date. The several obligations of the Underwriters to purchase Optional Additional Shares hereunder are subject to the delivery to you on the applicable Option Closing Date of such documents as you may reasonably request with respect to the good standing of the Company, the due authorization and issuance of the Optional Additional Shares to be sold on such Option Closing Date and other matters related to the issuance of such Optional Additional Shares.
Appears in 1 contract
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Company or any of the securities of the Company or any of its subsidiaries or in the rating outlook for the Company by any “nationally recognized statistical rating organization,” as such term is defined for purposes in Section 3(a)(62) of Section 15c3-1(c)(2)(vi)(F) under the Exchange Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus as of the date of this Agreement that, in your the Representatives’ judgment, is material and adverse and that makes it, in your the Representatives’ judgment, impracticable to market the Offered Shares Securities on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i5(a)(i) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an opinion and statement of Xxxxxx Xxxxx Xxxxxxxx Xxxxxxx Xxxx & Xxxxxxx LLPXxxxxxx, outside Bermudan counsel for the Company, dated the Closing Date, to covering the effect matters set forth in Exhibit A hereto.
(d) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxxx P.CXxxxx Day, Xxxxxxxx Islands United States counsel for the Company, dated the Closing Date, to covering the effect matters set forth in on Exhibit B hereto.
(e) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxx Xxxxxxxx Chance US LLP, special U.S. maritime environmental counsel and Liberian counsel for the CompanyUnderwriters, dated the Closing Date, in the form and substance reasonably satisfactory to the effect set forth in Exhibit C heretoUnderwriters.
(f) The Underwriters shall have received on the Closing Date an opinion and statement of XxxxxxXxXxxx XxxxXxxxxx, Xxxxx & Xxxxxxx LLP, Irish counsel for the UnderwritersCompany, dated the Closing Date, with respect to such covering the matters as may be requested by the Underwritersset forth on Exhibit C hereto.
(g) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx and Calder, Cayman counsel for the Company, dated the Closing Date, covering the matters set forth on Exhibit D hereto.
(h) The Underwriters shall have received on the Closing Date an opinion of Xxxxxxx Xxxxxx, Legal Counsel of BBAM LP, dated the Closing Date, covering the matters set forth on Exhibit E hereto. The opinions described in Sections 5(c), 5(d), 5(e), 5(f), 5(g) and 5(h) above shall be rendered to the Underwriters at the request of the Company and shall so state therein.
(i) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Deloitte Ernst & Touche Young LLP, independent public accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, the Time of Sale Prospectus and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
(hj) The Offered Shares 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) No amendment or supplement to the Registration Statement or Prospectus shall have been approved for listing on filed to which the NYSE, and satisfactory evidence thereof Underwriters shall have been provided to youobjected in writing.
(il) FINRA The Underwriters shall have raised no objection to the fairness and reasonableness received, on each of the underwriting terms and arrangements.
(j) The “lock-up” agreements, each substantially in the form of Exhibit D hereto, between you and Genco and each officer and director of the Company relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, and the Closing Date, a certificate from the Company’s Chief Financial Officer, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters containing representations with respect to certain financial information contained or incorporated by reference in the Registration Statement, the Time of Sale Prospectus and the Prospectus.
(m) The Underwriters shall be in full force have received (i) on the date hereof, the Representation and effect Warranty Certificate required pursuant to Section 2(a) of that certain Indemnification Agreement between BBAM US LP, the Manager and the Representatives, dated as of the date hereof (the “Indemnification Agreement”); and (ii) on the Closing Date. The several obligations , the deliverables required pursuant to Sections 2(b) and 2(c) of the Underwriters to purchase Optional Shares hereunder are subject to the delivery to you on the applicable Option Closing Date of such documents as you may reasonably request with respect to the good standing of the Company, the due authorization and issuance of the Optional Shares to be sold on such Option Closing Date and other matters related to the issuance of such Optional SharesIndemnification Agreement.
Appears in 1 contract
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters to purchase and pay for the Securities on the Closing Date are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries or for the rating outlook for any of them by any “nationally recognized statistical rating organization,” as such term is defined for purposes of Section 15c3-1(c)(2)(vi)(FRule 436(g)(2) under the Exchange Securities Act; and
(ii) there shall not have occurred any change, or any development involving which would reasonably be expected to have a prospective change, in the condition, financial or otherwise, or in the earnings, business business, properties or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus as (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement Agreement) and the Prospectus (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement) that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable or inadvisable to market the Offered Shares Securities on the terms and in the manner contemplated in the Time of Sale ProspectusProspectus (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement) and the Prospectus (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement).
(b) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Company who has specific knowledge of the Company’s financial matters, and is reasonably satisfactory to the Underwriters, to the effect set forth in Section 5(a)(i) above and to the effect (ii) that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and that the Company has complied in all material respects with all of the agreements and satisfied in all material respects all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an opinion and statement of Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx Xxxxx LLP, outside counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit A A-1 hereto and the additional letter from Xxxxx Xxxxx LLP to the effect set forth in Exhibit A-2 hereto.
(d) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxxx P.CXxxxx X. Xxxxx, Xxxxxxxx Islands counsel for General Counsel of the CompanyCompany (or such other person who shall be General Counsel of the Company on the Closing Date), dated the Closing Date, to the effect set forth in Exhibit B hereto.
(e) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx Skadden, Arps, Slate, Xxxxxxx & Xxxxxx LLP, special U.S. maritime environmental counsel and Liberian counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit C hereto.
(f) The Underwriters shall have received on the Closing Date an opinion and statement of Xxxxxx, Xxxxx & Xxxxxxx Xxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to such matters as the Underwriters may be requested by reasonably request, and the UnderwritersCompany shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(gf) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter letters dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Deloitte & Touche LLP, independent public accountantsaccountants to the Company, 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, the Time of Sale Prospectus and the Prospectus; provided that the letter letters delivered on the Closing Date shall use a “cut-cut off date” not earlier than the date hereof.
(hg) The Offered Shares shall have been approved for listing on No stop order suspending the NYSE, and satisfactory evidence effectiveness of the Registration Statement or any part thereof shall have been provided to you.
(i) FINRA issued and no proceeding for that purpose shall have raised been initiated or threatened by the Commission and no notice of objection of the Commission to the fairness and reasonableness use of the underwriting terms and arrangements.
(jRegistration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) The “lock-up” agreements, each substantially in under the form of Exhibit D hereto, between you and Genco and each officer and director Act shall have been received; no stop order suspending or preventing the use of the Company relating to sales Prospectus or any issuer free writing prospectus shall have been initiated or threatened by the Commission; and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect all requests for additional information on the Closing Datepart of the Commission shall have been complied with to the reasonable satisfaction of the Underwriters. The several Company will furnish the Underwriters with such conformed copies of such opinions, certificates, letters and documents as the Underwriters reasonably request. The Underwriters may in their sole discretion waive compliance with any conditions to the obligations of the Underwriters to purchase Optional Shares hereunder are subject to the delivery to you on the applicable Option Closing Date of such documents as you may reasonably request with respect to the good standing of the Company, the due authorization and issuance of the Optional Shares to be sold on such Option Closing Date and other matters related to the issuance of such Optional Shareshereunder.
Appears in 1 contract
Samples: Underwriting Agreement (Hospira Inc)
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters to purchase and pay for the Firm Shares on the Closing Date and the Additional Shares that may be purchased on each Option Closing Date are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the each Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined for purposes in Section 3(a)(62) of Section 15c3-1(c)(2)(vi)(F) under the Exchange Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus as of the date of this Agreement that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Offered Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Underwriters shall have received on the each Closing Date a certificate, dated the such Closing Date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the such Closing Date and that the Company has complied in all material respects with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the such Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the each Closing Date an opinion and statement negative assurance letter of Xxxxxx Xxxxx Xxxxxxxx Skadden, Arps, Slate, Xxxxxxx & Xxxxxxx Xxxx LLP, outside special counsel for the Company, dated the such Closing Date, in form and substance reasonably satisfactory to the effect set forth in Exhibit A heretoUnderwriters.
(d) The Underwriters shall have received on the each Closing Date an opinion of Xxxxxx & Xxxxxxx P.CXxxxxx, Xxxxxxxx Islands counsel Senior Vice President and General Counsel for the Company, dated the such Closing Date, in form and substance reasonably satisfactory to the effect set forth in Exhibit B heretoUnderwriters.
(e) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxx LLP, special U.S. maritime environmental counsel and Liberian counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit C hereto.
(f) The Underwriters shall have received on the each Closing Date an opinion and statement negative assurance letter of Xxxxxx, Xxxxx Xxxx & Xxxxxxx Xxxxxxxx LLP, counsel for the Underwriters, dated the such Closing Date, with respect in form and substance satisfactory to such matters as may be requested by the Underwriters. The opinions of counsel for the Company described in Sections 5(c) and 5(d) above shall be rendered to the Underwriters at the request of the Company and shall so state therein.
(gf) The Underwriters shall have received, on each of the date hereof and the each Closing Date, a letter letters dated the date hereof or the such Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Deloitte KPMG LLP, Cherry, Bekaert & Touche Holland, L.L.P., Ernst & Young LLP and Zeifmans LLP, independent public accountants, 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, the Time of Sale Prospectus and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
(h) The Offered Shares shall have been approved for listing on the NYSE, and satisfactory evidence thereof shall have been provided to you.
(i) FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(jg) The “lock-up” agreements, each substantially in the form of Exhibit D A hereto, between you and Genco certain shareholders, officers and each officer and director directors of the Company relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the each Closing Date. The several obligations of the Underwriters to purchase Optional Shares hereunder are subject to the delivery to you on the applicable Option Closing Date of such documents as you may reasonably request with respect to the good standing of the Company, the due authorization and issuance of the Optional Shares to be sold on such Option Closing Date and other matters related to the issuance of such Optional Shares.
Appears in 1 contract
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate no order suspending the direction effectiveness of the possible changeRegistration Statement shall be in effect, in the rating accorded any of the securities of the Company and no proceeding for such purpose or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined for purposes of pursuant to Section 15c3-1(c)(2)(vi)(F) 8A under the Exchange Act; andSecurities Act shall be pending before or, to the Company’s knowledge, threatened by the Commission;
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus as of the date of this Agreement that, in your the Representatives’ judgment, is material and adverse and that makes it, in your the Representatives’ judgment, impracticable to market the Offered Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(iSections 6(a)(i) and 6(a)(ii) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an opinion and statement of Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLPChiomenti Studio Legale, outside Italian counsel for the Company, dated the Closing Date, in form and substance reasonably satisfactory to the effect set forth in Exhibit A heretoRepresentatives, together with signed or reproduced copies of such opinion for each of the other Underwriters.
(d) The Underwriters shall have received on the Closing Date an opinion and negative assurance letter of Xxxxxx Xxxxxxx, Arps, Slate, Xxxxxxx & Xxxxxxx P.CXxxx (UK) LLP, Xxxxxxxx Islands outside U.S. counsel for the Company, dated the Closing Date, in form and substance reasonably satisfactory to the effect set forth in Exhibit B heretoRepresentatives, together with signed or reproduced copies of such opinion for each of the other Underwriters.
(e) The Underwriters shall have received on the Closing Date an opinion and negative assurance letter of Xxxxxx & Xxxxxx LLP, special U.S. maritime environmental counsel and Liberian counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit C hereto.
(f) The Underwriters shall have received on the Closing Date an opinion and statement of Xxxxxx, Xxxxx & Xxxxxxx LLP, U.S. and Italian counsel for the Underwriters, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives, together with respect to signed or reproduced copies of such matters as may be requested by opinion for each of the other Underwriters.
(gf) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance reasonably satisfactory to the Underwriters, from Deloitte & Touche LLPEY S.p.A. and Pricewaterhouse Coopers S.p.A., independent registered public accountantsaccounting firms, 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 relating to the respective periods during which they acted as auditors for the Company contained or incorporated by reference in the Registration Statement, the Time of Sale Prospectus and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
(hg) The Offered Shares shall have been approved for listing on Lock-up Agreements between the NYSE, Representatives and satisfactory evidence thereof shall have been provided to you.
(i) FINRA shall have raised no objection to the fairness Selling Shareholder and reasonableness of the underwriting terms officers and arrangements.
(j) The “lock-up” agreements, each substantially in the form of Exhibit D hereto, between you and Genco and each officer and director directors of the Company relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date. .
(h) The several obligations of the Underwriters to subscribe or purchase Optional Additional Shares hereunder are subject to the delivery to you the Representatives on the applicable Option Closing Date of the following:
(i) a certificate, dated the Option Closing Date and signed by an executive officer of the Company, confirming that the certificate delivered on the Closing Date pursuant to Section 6(b) hereof remains true and correct as of such Option Closing Date;
(ii) an opinion of Chiomenti Studio Legale, Italian counsel for the Company and the Selling Shareholder, dated the Option Closing Date, relating to the Additional Shares to be subscribed or purchased on such Option Closing Date and otherwise in the form and substance of the opinion required by Section 6(c) hereof;
(iii) an opinion and negative assurance letter of Xxxxxxx, Arps, Slate, Xxxxxxx & Xxxx (UK) LLP, outside US counsel for the Company and the Selling Shareholder, dated the Option Closing Date, relating to the Additional Shares to be subscribed or purchased on such Option Closing Date and otherwise in the form and substance of the opinion required by Section 6(d) hereof;
(iv) an opinion and negative assurance letter of Xxxxxx & Xxxxxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Additional Shares to be subscribed or purchased on such Option Closing Date and otherwise in the form and substance of the opinion required by Section 6(e) hereof;
(v) a letter dated the Option Closing Date, in form and substance satisfactory to the Underwriters, from EY S.p.A. and PricewaterhouseCoopers S.p.A., independent registered public accounting firms, substantially in the same form and substance as the letters furnished to the Underwriters pursuant to Section 6(f) hereof; provided that the letter delivered on the Option Closing Date shall use a “cut-off date” not earlier than two business days prior to such Option Closing Date; and
(vi) such other documents as you the Underwriters may reasonably request with respect to the good standing of each of the CompanyCompany and the Selling Shareholder, the due authorization and issuance of the Optional Additional Shares to be issued or sold on such Option Closing Date and other matters related to the issuance or sale of such Optional Additional Shares.
Appears in 1 contract
Conditions to the Underwriters’ Obligations. The several obligations obligation of the Underwriters to purchase and pay for the Securities on the Closing Date are subject to the accuracy of the representations and warranties on the part of the Company contained herein or in certificates of any officer or other representative of the Company and delivered pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following further conditions:
(a) the Registration Statement shall have become effective not later than 5:30 P.M. (New York City time) on the date hereof.
(b) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there no order suspending the effectiveness of the Registration Statement shall not have occurred any downgradingbe in effect, nor shall any notice have been given no order preventing or suspending the use of any intended preliminary prospectus or potential downgrading the Prospectus or of any review amendment or supplement thereto has been issued, and no proceedings for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company those purposes or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined for purposes of pursuant to Section 15c3-1(c)(2)(vi)(F) 8A under the Exchange ActSecurities Act shall be pending before or threatened by the Commission; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business business, properties, liquidity, results of operations or operations prospects of the Company and its subsidiariesCompany, taken as a wholewhether or not arising in the ordinary course of business, from that set forth in the Time of Sale Prospectus as of the date of this Agreement that, in your Xxxxxx Xxxxxxx’x judgment, is material and adverse and that makes it, in your Xxxxxx Xxxxxxx’x judgment, impracticable to market the Offered Shares Securities on the terms and in the manner contemplated in the Time of Sale Prospectus.
(bc) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer the Chief Executive Officer or the Chief Financial Officer of the Company, to the effect set forth in Section 5(a)(i5(b) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(cd) The Underwriters shall have received on the Closing Date an opinion and statement negative assurance letter of Xxxxxx Xxxxx Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx & Xxxxxxx LLP, outside counsel for the Company, dated the Closing Date, in a form acceptable to the effect set forth in Exhibit A hereto.
(d) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxxx P.C, Xxxxxxxx Islands counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit B heretoXxxxxxx.
(e) The Underwriters shall have received on the Closing Date an opinion and negative assurance letter of Xxxxxx & Xxxxxx LLPWalkers, special U.S. maritime environmental counsel and Liberian Cayman Islands counsel for the Company, dated the Closing Date, in a form acceptable to the effect set forth in Exhibit C heretoXxxxxx Xxxxxxx.
(f) The Underwriters shall have received on the Closing Date an opinion and statement negative assurance letter of Xxxxxx, Xxxxxxxx & Xxxxx & Xxxxxxx LLP, counsel for the Underwriters, dated the Closing Date, with respect in a form acceptable to such matters as may be requested by the UnderwritersXxxxxx Xxxxxxx.
(g) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Deloitte & Touche LLPXxxxxx, independent public accountants, 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, the Time of Sale Prospectus and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
(h) The Offered Shares Company shall have been approved for listing on the NYSE, and satisfactory evidence thereof shall have been provided to you.
(i) FINRA shall have raised no objection delivered to the fairness and reasonableness Underwriters executed copies of the underwriting terms Transaction Agreements and arrangements.
(j) The “lock-up” agreements, each substantially in the form of Exhibit D hereto, between you and Genco Insider Letter and each officer and director of the Company relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date. .
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The several Securities shall have been duly listed, and admitted and authorized for trading, on NYSE, subject to notice of issuance, satisfactory evidence of which shall have been provided to the Underwriters.
(k) At least one business day prior to the Closing Date, the Company shall have caused proceeds from the Private Placement Warrants sold by the Company to the Sponsor and the Sponsor Co-Investors on the Closing Date to be deposited into the Trust Account such that the cumulative amount deposited into the Trust Account as of the Closing Date shall equal the product of the number of Securities sold on the Closing Date and the Public Offering Price per Unit.
(l) No order preventing or suspending the sale of the Securities in any jurisdiction designated by the Underwriters pursuant to Section 6(g) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(m) Counsel for the Underwriters shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to render the opinions or make the statements requested by the Underwriters, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the covenants, obligations or conditions, contained herein; and all proceedings taken by the Company in connection with the offer and sale of the Securities as contemplated herein shall be satisfactory in form and substance to the Underwriters and counsel to the Underwriters.
(n) The obligation of the Underwriters to purchase Optional Shares Additional Securities hereunder are subject to the delivery to you the Underwriters on the applicable Option Closing Date of the following:
(i) a certificate, dated the Option Closing Date and signed by the Chief Executive Officer or the Chief Financial Officer of the Company, confirming that the certificate delivered on the Closing Date pursuant to Section 5(c) hereof remains true and correct as of such Option Closing Date;
(ii) an opinion and negative assurance letter of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, outside counsel for the Company, dated the Option Closing Date, relating to the Additional Securities to be purchased on such Option Closing Date in a form acceptable to Xxxxxx Xxxxxxx;
(iii) an opinion of Walkers, Cayman Islands counsel for the Company, dated the Option Closing Date, relating to the Additional Shares to be purchased on such Option Closing Date in a form acceptable to Xxxxxx Xxxxxxx;
(iv) an opinion of Xxxxxxxx & Xxxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Additional Securities to be purchased on such Option Closing Date in a form acceptable to Xxxxxx Xxxxxxx;
(v) a letter dated the Option Closing Date, in form and substance satisfactory to the Underwriters, from Xxxxxx, independent public accountants, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 5(f) hereof; provided that the letter delivered on the Option Closing Date shall use a “cut-off date” not earlier than three business days prior to such Option Closing Date; and
(vi) such other documents as you the Underwriters may reasonably request with respect to the good standing of the Company, the due authorization and issuance of the Optional Shares Additional Securities to be sold on such Option Closing Date and other matters related to the issuance of such Optional SharesAdditional Securities.
Appears in 1 contract
Samples: Underwriting Agreement (Trine II Acquisition Corp.)
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters Underwriter to purchase and pay for the Shares are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgradingapplicable Closing, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined for purposes of Section 15c3-1(c)(2)(vi)(F) under the Exchange Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Information and Prospectus as of the date of this Agreement that, in your the Underwriter’s judgment, is material and adverse and that makes it, in your the Underwriter’s judgment, impracticable to market the Offered Shares on the terms and in the manner contemplated in the Time of Sale Information and Prospectus.
(b) The Underwriters Underwriter shall have received on the applicable Closing Date a certificate, dated as of the applicable Closing Date and signed by an executive officer the Chief Executive Officer of the Company, to Company on behalf of the effect set forth in Section 5(a)(i) above Company and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the applicable Closing Date and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Dateapplicable Closing. The officer signing and delivering such certificate on behalf of the Company may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters Underwriter shall have received on at the applicable Closing Date an opinion and statement of Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLPDay, outside counsel for the Company, dated as of the Closing Dateapplicable Closing, in form and substance satisfactory to the effect set forth in Exhibit A heretoUnderwriter.
(d) The Underwriters Underwriter shall have received on at the applicable Closing Date an opinion of Xxxxx, Xxxxxx & Xxxxxxx P.CXxXxxxxx, Xxxxxxxx Islands P.C., outside regulatory counsel for the Company, dated as of the Closing Dateapplicable Closing, in form and substance satisfactory to the effect set forth in Exhibit B heretoUnderwriter.
(e) The Underwriters Underwriter shall have received on at the applicable Closing Date an opinion of Xxxxxx King & Xxxxxx Spalding LLP, special U.S. maritime environmental counsel and Liberian outside patent counsel for the Company, dated as of the Closing Dateapplicable Closing, in form and substance satisfactory to the effect set forth in Exhibit C heretoUnderwriter.
(f) The Underwriters Underwriter shall have received on at the applicable Closing Date an opinion and statement of Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Xxxxx & Xxxxxxx LLPProfessional Corporation, counsel for the UnderwritersUnderwriter, dated in form and substance satisfactory to the Closing Date, with respect to such matters as may be requested by the UnderwritersUnderwriter.
(g) The Underwriters Underwriter shall have receivedreceived on the date hereof and at each applicable Closing, on each a letter dated as of the date hereof and as of the Closing Date, a letter dated the date hereof or the Closing Dateapplicable Closing, as the case may be, in form and substance satisfactory to the UnderwritersUnderwriter, from Deloitte Ernst & Touche Young LLP, independent public accountants, 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, the Time of Sale Prospectus Information and the Prospectus; provided that the (x) the letter delivered on the date hereof shall use a “cut off date” not earlier than the date hereof and (z) the letter used on any Option Closing Date Date, shall use a “cut-off date” not earlier than three (3) business day prior to the date hereofapplicable Option Closing Date, as the case may be.
(h) The Offered Shares shall have been approved for listing on the NYSE, and satisfactory evidence thereof shall have been provided to you.
(i) FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(j) The “lock-up” up agreements, each substantially in the form of Exhibit D heretoA hereto (the “Lock-Up Agreements”), between you the Underwriter and Genco officers and each officer and director directors of the Company relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you the Underwriter on or before the date hereof, shall be in full force and effect on at the Closing Dateapplicable Closing.
(i) The Company shall have filed the Prospectus with the Commission (including the information required by Rule 430A under the Securities Act) in the manner and within the time period required by Rule 424(b) under the Securities Act; or the Company shall have filed a post-effective amendment to the Registration Statement containing the information required by such Rule 430A, and such post-effective amendment shall have become effective.
(j) No stop order suspending the effectiveness of the Registration Statement, any Rule 462 Registration Statement, or any post-effective amendment to the Registration Statement, shall be in effect and no proceedings for such purpose shall have been instituted or threatened by the Commission. The several obligations of the Underwriters Underwriter to purchase Optional Additional Shares hereunder are subject to the delivery to you the Underwriter on the applicable Option Closing Date of such documents as you the Underwriter may reasonably request with respect to the good standing of the Company, the due authorization and issuance of the Optional Additional Shares to be sold on such Option Closing Date and other matters related to the issuance of such Optional Additional Shares.
Appears in 1 contract
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters are subject to the following further conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined for purposes of Section 15c3-1(c)(2)(vi)(F) under the Exchange Act; and
(ii) Date there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus as of the date of this Agreement that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Offered Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date (i) an opinion and statement (ii) a negative assurance letter of Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP, outside counsel for the Company, dated the Closing Date, in form and substance reasonably satisfactory to the effect set forth in Exhibit A heretoRepresentatives.
(d) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx Bozicevic, Field & Xxxxxxx P.CXxxxxxx, Xxxxxxxx Islands LLP, outside intellectual property counsel for the Company, dated the Closing Date, in form and substance reasonably satisfactory to the effect set forth in Exhibit B heretoRepresentatives.
(e) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxx LLP, special U.S. maritime environmental counsel and Liberian counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit C hereto.
(fi) The Underwriters shall have received on the Closing Date an opinion and statement (ii) a negative assurance letter of Xxxxxx, Xxxxx Xxxx & Xxxxxxx LLPXxxxxxxx LLP (“Xxxxx Xxxx”), counsel for the Underwriters, dated the Closing Date, with in form and substance satisfactory to the Representatives. With respect to such matters Section 5(c)(ii) and 5(e)(ii) above, Xxxxxx LLP and Xxxxx Xxxx may state that their opinions and beliefs are based upon their participation in the preparation of the Registration Statement, the Time of Sale Prospectus and the Prospectus and any amendments or supplements thereto and review and discussion of the contents thereof, but are without independent check or verification, except as may specified. The opinion and negative assurance letter of Xxxxxx LLP described in Section 5(c) and the opinion of Bozicevic, Field & Xxxxxxx, LLP described in Section 5(d) above shall be requested by rendered to the UnderwritersUnderwriters at the request of the Company and shall so state therein.
(gf) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance reasonably satisfactory to the UnderwritersRepresentatives, from Deloitte Ernst & Touche Young LLP, independent registered public accountantsaccounting firm, 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, the Time of Sale Prospectus and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
(h) The Offered Shares shall have been approved for listing on the NYSE, and satisfactory evidence thereof shall have been provided to you.
(i) FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(jg) The “lock-up” agreements, each substantially in the form of Exhibit D A hereto, between you and Genco certain directors, officers and each officer and director stockholders of the Company hereto relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date. .
(h) The several obligations of the Underwriters to purchase Optional Additional Shares hereunder are subject to the delivery to you on the applicable Option Closing Date of the following:
(i) a certificate, dated the Option Closing Date and signed by an executive officer of the Company, confirming that the certificate delivered on the Closing Date pursuant to Section 5(b) hereof remains true and correct as of such Option Closing Date;
(ii) an opinion and negative assurance letter of Xxxxxx LLP, outside counsel for the Company, dated the Option Closing Date, relating to the Additional Shares to be purchased on such Option Closing Date and otherwise to the same effect as the opinion and negative assurance letter required by Section 5(c) hereof;
(iii) an opinion of Bozicevic, Field & Xxxxxxx, LLP, outside intellectual property counsel for the Company, dated the Option Closing Date, to the same effect as the opinion required by Section 5(d) hereof;
(iv) an opinion and negative assurance letter of Xxxxx Xxxx, counsel for the Underwriters, dated the Option Closing Date, relating to the Additional Shares to be purchased on such Option Closing Date and otherwise to the same effect as the opinion and negative assurance letter required by Section 5(e) hereof;
(v) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Ernst & Young LLP, independent registered public accounting firm, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 5(f) hereof; provided that the letter delivered on the Option Closing Date shall use a “cut-off date” not earlier than two business days prior to such Option Closing Date; and
(vi) such other documents as you may reasonably request with respect to the good standing of the Company, the due authorization and issuance of the Optional Additional Shares to be sold on such Option Closing Date and other matters related to the issuance of such Optional Additional Shares.
Appears in 1 contract
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined for purposes in Section 3(a)(62) of Section 15c3-1(c)(2)(vi)(F) under the Exchange Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus as of the date of this Agreement that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Offered Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Underwriters Representatives shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters Representatives shall have received on the Closing Date an opinion and statement of Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP, outside counsel for the Company, dated the Closing Date, to substantially in the effect set forth in form attached hereto as Exhibit A hereto.B.
(d) The Underwriters Representatives shall have received on the Closing Date an opinion of XxXxxx Xxxxxxxxxx, Irish counsel for the Company, dated the Closing Date, substantially in the form attached hereto as Exhibit C.
(e) The Representatives shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxxx P.C, Xxxxxxxx Islands counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit B hereto.
(e) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxx LLP, special U.S. maritime environmental counsel and Liberian counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit C hereto.
(f) The Underwriters shall have received on the Closing Date an opinion and statement of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel for the Underwriters, dated the Closing Date, with respect in form and substance satisfactory to such matters as the Representatives. The opinion of counsel for the Company described in Section 5(c) and (d) above shall be rendered to the Representatives at the request of the Company and may be requested by the Underwritersso state therein.
(gf) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the UnderwritersRepresentatives, from Deloitte & Touche each of PricewaterhouseCoopers LLP and Habif, Arogeti and Xxxxx, LLP, each independent public accountants, 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, the Time of Sale Prospectus and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
(h) The Offered Shares shall have been approved for listing on the NYSE, and satisfactory evidence thereof shall have been provided to you.
(i) FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(jg) The “lock-up” agreements, each substantially in the form of Exhibit D A hereto, between you and Genco and each officer and director of the Company persons listed on Exhibit D hereto relating to sales and certain other dispositions of shares of Common Stock Ordinary Shares or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date. .
(h) The Underwriters shall have received, on each of the date hereof and the Closing Date, a certificate (each, a “CFO Certificate”), in form and substance reasonably satisfactory to the Underwriters.
(i) The several obligations of the Underwriters to purchase Optional Additional Shares hereunder are subject to the delivery to you on the applicable Option Closing Date of the following:
(i) a certificate, dated the Option Closing Date and signed by an executive officer of the Company, confirming that the certificate delivered on the Closing Date pursuant to Section 5(b) hereof remains true and correct as of such Option Closing Date;
(ii) an opinion of Xxxxxx LLP, outside counsel for the Company, dated the Option Closing Date, relating to the Additional Shares to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 5(c) hereof;
(iii) an opinion of XxXxxx Xxxxxxxxxx, Irish counsel for the Company, dated the Option Closing Date, relating to the Additional Shares to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 5(d) hereof;
(iv) an opinion of Xxxxxx & Xxxxxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Additional Shares to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 5(e) hereof;
(v) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from each of PricewaterhouseCoopers LLP and Habif, Arogeti and Xxxxx, LLP, each independent public accountants, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 5(f) hereof; provided that the letter delivered on the Option Closing Date from PricewaterhouseCoopers LLP shall use a “cut-off date” not earlier than three business days prior to such Option Closing Date; and
(vi) such other documents as you may reasonably request with respect to the good standing of the Company, the due authorization and issuance of the Optional Additional Shares to be sold on such Option Closing Date and other matters related to the issuance of such Optional Additional Shares.
Appears in 1 contract
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Company or any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined for purposes in Section 3(a)(62) of Section 15c3-1(c)(2)(vi)(F) under the Exchange Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus as of the date of this Agreement that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Offered Shares Securities on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an opinion and statement of Xxxxxx Xxxxx Xxxxxxxx Dxxxx Xxxx & Xxxxxxx Wxxxxxxx LLP, outside counsel for the Company, dated the Closing Date, in form and substance to the effect set forth in Exhibit A hereto.Annex A.
(d) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx Lxxxxx & Xxxxxxx P.C, Xxxxxxxx Islands counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit B hereto.
(e) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxx LLP, special U.S. maritime environmental counsel and Liberian counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit C hereto.
(f) The Underwriters shall have received on the Closing Date an opinion and statement of Xxxxxx, Xxxxx & Xxxxxxx Wxxxxxx LLP, counsel for the Underwriters, dated the Closing Date, with covering the matters referred to in paragraphs (iii), (iv), (v) and the second to last paragraph of Annex A (but only as to the statements in each of the Time of Sale Prospectus and the Prospectus under “Description of Debt Securities,” “Description of the Notes” insofar as relevant to the offering of the Securities and “Underwriters”) and clauses (B)(1), (B)(2), and (B)(3) of the last paragraph of Annex A. With respect to such matters the last paragraph of Annex A, counsel for the Company may state that their opinions and beliefs are based upon their participation in the preparation of the Registration Statement, the Time of Sale Prospectus, the Prospectus and any amendments or supplements thereto and review and discussion of the contents thereof, but are without independent check or verification, except as specified. With respect to clauses (B)(1), (B)(2) and (B)(3) of the last paragraph of Annex A, Lxxxxx & Wxxxxxx LLP may state that their opinions and beliefs are based upon their participation in the preparation of the Registration Statement, the Prospectus, the free writing prospectuses identified as part of the Time of Sale Prospectus in Schedule I hereto, the prospectus supplement and any amendments or supplements thereto (other than the documents incorporated by reference) and upon review and discussion of the contents of the Registration Statement, the Time of Sale Prospectus and the Prospectus (including documents incorporated by reference), but are without independent check or verification, except as specified. The opinion of counsel for the Company described in Section 5(c) above shall be requested by rendered to the UnderwritersUnderwriters at the request of the Company and shall so state therein.
(ge) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Deloitte & Touche PricewaterhouseCoopers LLP, independent public accountants, 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, the Time of Sale Prospectus and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
(h) The Offered Shares shall have been approved for listing on the NYSE, and satisfactory evidence thereof shall have been provided to you.
(i) FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(j) The “lock-up” agreements, each substantially in the form of Exhibit D hereto, between you and Genco and each officer and director of the Company relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date. The several obligations of the Underwriters to purchase Optional Shares hereunder are subject to the delivery to you on the applicable Option Closing Date of such documents as you may reasonably request with respect to the good standing of the Company, the due authorization and issuance of the Optional Shares to be sold on such Option Closing Date and other matters related to the issuance of such Optional Shares.
Appears in 1 contract
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters Underwriter are subject to the following further conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any public notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities indebtedness of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined for purposes of Section 15c3-1(c)(2)(vi)(F3(a)(62) under of the Exchange Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus as of the date of this Agreement that, in your the Underwriter’s judgment, is material and adverse and that makes it, in your the Underwriter’s judgment, impracticable to market the Offered Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Underwriters Underwriter shall have received on the Closing Date (i) a certificate, dated the Closing Date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i6(a)(i) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date and (ii) a certificate of the Selling Shareholder to the effect that the representations and warranties of the Selling Shareholder in this Agreement are true and correct with the same force and effect as though expressly made at and as of the Closing Date and the Selling Shareholder has complied with all agreements and all conditions on its part to be performed under this Agreement at or prior to the Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters Underwriter shall have received on the Closing Date an opinion and statement negative assurance letter of Xxxxxx Xxxxx Xxxxxxxxx & Xxxxxxxx & Xxxxxxx LLP, outside counsel for the Company and the Selling Shareholder, dated the Closing Date, in the forms attached hereto as Exhibit A-1, Exhibit A-2 and Exhibit A-3, respectively.
(d) The Underwriter shall have received on the Closing Date an opinion of Xxxxx Xxxxx, General Counsel of the Company, dated the Closing Date, to in the effect set forth in form attached hereto as Exhibit A hereto.B.
(de) The Underwriters Underwriter shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxxx P.C, Xxxxxxxx Islands counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit B hereto.
(e) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxx LLP, special U.S. maritime environmental counsel and Liberian counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit C hereto.
(f) The Underwriters shall have received on the Closing Date an opinion and statement of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel for the UnderwritersUnderwriter, dated the Closing Date, with respect to such matters as the Underwriter may be requested by the Underwritersreasonably request.
(gf) The Underwriters Underwriter shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the UnderwritersUnderwriter, from Deloitte Ernst & Touche Young LLP, independent public accountants, 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, the Time of Sale Prospectus and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
(h) The Offered Shares shall have been approved for listing on the NYSE, and satisfactory evidence thereof shall have been provided to you.
(i) FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(jg) The “lock-uplock‑up” agreements, each substantially in the form of Exhibit D C hereto, between you the Underwriter and Genco the Selling Shareholder, the executive officers and each officer and director directors of the Company listed on Schedule III hereto, relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you the Underwriter on or before the date hereof, shall be in full force and effect on the Closing Date. .
(h) The several obligations of Underwriter shall have received on the Underwriters to purchase Optional Shares hereunder are subject date hereof, and on the Closing Date, a certificate addressed to the delivery to you on the applicable Option Closing Date Underwriter and as of such documents as you may reasonably request with respect to the good standing dates, of Xxxxx Xxxx, Senior Vice President, Chief Financial Officer and Treasurer of the Company, covering certain financial and accounting information in the due authorization and issuance Time of Sale Prospectus, substantially in the form attached hereto as Exhibit D.
(i) No order suspending the effectiveness of the Optional Shares Registration Statement shall be in effect, and no proceeding for such purpose pursuant to Section 8A under the Securities Act shall be pending before or, to the Company’s knowledge after due inquiry, threatened by the Commission; the Prospectus and each free writing prospectus required to be sold on such Option filed by the Company by Rule 433 under the Securities Act shall have been timely filed with the Commission under the Securities Act (in the case of a free writing prospectus to the extent required by Rule 433 under the Securities Act) and in accordance with Section 6(c) hereof; and all requests by the Commission for additional information shall have been complied with to the Underwriter’s reasonable satisfaction.
(j) The representations and warranties of each of the Company and Selling Shareholder contained in this Agreement are true and correct as of the Closing Date and other matters related that each of the Company and Selling Shareholder has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the issuance Closing Date.
(k) Immediately following the consummation of such Optional the offering of the Shares, the Company’s purchase of the Repurchased Shares will be consummated.
Appears in 1 contract
Samples: Underwriting Agreement (Booz Allen Hamilton Holding Corp)
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters Underwriter are subject to the following further conditions:
(a) : Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) : there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company's securities of the Company or any of its subsidiaries by any “"nationally recognized statistical rating organization,” " as such term is defined for purposes of Section 15c3-1(c)(2)(vi)(FRule 436(g)(2) under the Exchange Securities Act; and
(ii) and there shall not have occurred any change, or any development involving that would reasonably be expected to result in a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time most recent Preliminary Prospectus and the Prospectus (exclusive of Sale Prospectus as of any amendments or supplements thereto subsequent to the date of this Agreement Agreement) that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Offered Shares on the terms and in the manner contemplated in the Time of Sale most recent Preliminary Prospectus and the Prospectus.
(b) . The Underwriters Underwriter shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i6(a)(i) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) . The Underwriters Underwriter shall have received on the Closing Date an opinion, tax opinion and statement negative assurance letter of Xxxxxx Xxxxx Xxxxxxxx Skadden, Arps, Slate, Meagher, & Xxxxxxx Xxxx LLP, outside special counsel for the Company, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriter, to the effect set forth in Exhibit A hereto.
(d) Exhibits B, C and D. The Underwriters Underwriter shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxxx P.CXxxxx Xxxxxxxx, Xxxxxxxx Islands general counsel for the Company, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriter, to the effect set forth in Exhibit B hereto.
(eE. The opinions of Skadden, Arps, Slate, Meagher, & Xxxx LLP and Xxxxx Xxxxxxxx described in Sections 6(c) and 6(d), respectively, above shall be rendered to the Underwriter at the request of the Company and shall so state therein. The Underwriters Underwriter shall have received on the Closing Date an opinion of Xxxxxx Xxxxx Xxxx & Xxxxxx LLPXxxxxxxx, special U.S. maritime environmental counsel and Liberian counsel for the CompanyUnderwriter, dated the Closing Date, with respect to the effect set forth in Exhibit C hereto.
(f) issuance and sale of the shares, the Registration Statement, the Pricing Disclosure Package, the Prospectus and other related matters as the Underwriter may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. The Underwriters Underwriter shall have received on the Closing Date an opinion and statement of Xxxxxx, XxXxxxxxx Will & Xxxxx & Xxxxxxx LLP, counsel for the Underwriters, Selling Stockholders dated the Closing Date, with respect in form and substance reasonably satisfactory to such matters as may be requested by the Underwriters.
(g) Underwriter, to the effect set forth in Exhibit F. The Underwriters Underwriter shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, Date in form and substance satisfactory to the UnderwritersUnderwriter, from Deloitte Ernst & Touche Young LLP, independent public accountants, 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 and incorporated by reference in the Registration Statement, the Time of Sale most recent Preliminary Prospectus and the Prospectus; provided that the such letter delivered on the Closing Date shall use a “"cut-off date” " not earlier than the date hereof.
(h) . The Offered Shares shall have been approved for listing on the NYSE, and satisfactory evidence thereof shall have been provided to you.
(i) FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(j) The “"lock-up” " agreements, each substantially in the form of Exhibit D A hereto, between you and Genco executive officers and each officer and director directors of the Company relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date. The several obligations of the Underwriters to purchase Optional Shares hereunder are subject Each Selling Stockholder shall have furnished to the delivery to you Underwriter on the applicable Option Closing Date a certificate, dated the Closing Date, signed by, or on behalf of, the Selling Stockholder stating that the representations and warranties of such documents Selling Stockholder contained herein are true and correct on and as you may reasonably request with respect to the good standing of the Company, the due authorization and issuance of the Optional Shares to be sold on such Option Closing Date and other matters related that such Selling Stockholder has complied with all its agreements contained herein and has satisfied all the conditions on its part to the issuance of be performed or satisfied hereunder at or prior to such Optional SharesClosing Date.
Appears in 1 contract
Samples: Underwriting Agreement (EnerSys)
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date and any Option Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined for purposes of Section 15c3-1(c)(2)(vi)(F3(A)(62) under of the Exchange Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business business, prospects or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus as of the date of this Agreement that, in your judgment, is material and adverse or is reasonably likely to be material and adverse, and that makes it, in your judgment, impracticable to market the Offered Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i) above and to the effect that (i) the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and any Option Closing Date and (ii) that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date and any Option Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an opinion and statement of Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLPDLA Piper LLP (US), outside counsel for the Company, dated the Closing Date, in the form previously agreed, which shall be rendered to the effect set forth in Exhibit A heretoUnderwriters at the request of the Company and shall so state therein.
(d) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxxx P.CLLP, Xxxxxxxx Islands intellectual property counsel for to the Company, dated the Closing Date, to in the effect set forth in Exhibit B heretoform previously agreed.
(e) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx Ropes & Xxxxxx LLP, special U.S. maritime environmental counsel and Liberian counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit C hereto.
(f) The Underwriters shall have received on the Closing Date an opinion and statement of Xxxxxx, Xxxxx & Xxxxxxx Xxxx LLP, counsel for the Underwriters, dated the Closing Date, with respect in form and substance reasonably satisfactory to such matters as may be requested by the UnderwritersManagers.
(gf) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Deloitte Ernst & Touche Young LLP, independent public accountants, 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, the Time of Sale Prospectus and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
(h) The Offered Shares shall have been approved for listing on the NYSE, and satisfactory evidence thereof shall have been provided to you.
(i) FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(jg) The “lock-up” agreements, each substantially in the form of Exhibit D A hereto, between you and Genco and each executive officer and director of the Company and certain stockholders of the Company relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date. .
(h) The several obligations of the Underwriters to purchase Optional Additional Shares hereunder are subject to the delivery to you on the applicable Option Closing Date of the following:
(i) a certificate, dated the Option Closing Date and signed by an executive officer of the Company, confirming that the certificate delivered on the Closing Date pursuant to Section 5(b) hereof remains true and correct as of such Option Closing Date;
(ii) an opinion of DLA Piper LLP (US), counsel for the Company, dated the Option Closing Date, relating to the Additional Shares to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 5(c) hereof;
(iii) an opinion of Xxxxxx LLP, intellectual property counsel to the Company, dated the Option Closing Date and otherwise to the same effect as the opinion required by Section 5(d) hereof;
(iv) an opinion of Ropes & Xxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Additional Shares to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 5(e) hereof;
(v) a letter dated the Option Closing Date, in form and substance satisfactory to the Underwriters, from Ernst & Young, LLP, independent public accountants, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 5(f) hereof; provided that the letter delivered on the Option Closing Date shall use a “cut-off date” not earlier than three business days prior to such Option Closing Date; and
(vi) such other documents as you may reasonably request with respect to the good standing of the Company, the due authorization and issuance of the Optional Additional Shares to be sold on such Option Closing Date and other matters related to the issuance of such Optional Additional Shares.
Appears in 1 contract
Samples: Underwriting Agreement (INSMED Inc)
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) , there shall not have occurred any downgradingbeen, nor shall any notice have been since the date hereof or since the respective dates as of which information is given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded Registration Statement, the Time of Sale Prospectus or the Prospectus, any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined for purposes of Section 15c3-1(c)(2)(vi)(F) under the Exchange Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or operations business prospects of the Company and its subsidiariessubsidiaries considered as one enterprise, taken as a whole, from that set forth whether or not arising in the Time ordinary course of Sale Prospectus as of the date of this Agreement that, in your judgment, is material and adverse and business that makes it, in your judgmentthe judgment of the Manager, impracticable to market the Offered Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Company on behalf of the Company, to the effect set forth in Section 5(a)(i) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an opinion and statement of Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP, outside United States counsel for the Company, dated the Closing Date, to substantially in the effect set forth in form attached hereto as Exhibit A hereto.B.
(d) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxxx P.CA&L Goodbody, Xxxxxxxx Islands Irish counsel for the Company, dated the Closing Date, to substantially in the effect set forth in form attached hereto as Exhibit B hereto.C.
(e) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx (i) Xxxxxxx & Xxxxxx LLPPartner, outside special U.S. maritime environmental counsel and Liberian intellectual property counsel for the Company, dated the Closing Date, to substantially in the effect set forth form attached hereto as Exhibit D-1, and (ii) Fitzpatrick, Cella, Xxxxxx & Xxxxxx, outside special intellectual property counsel for the Company, dated the Closing Date, substantially in the form attached hereto as Exhibit C heretoD-2.
(f) The Underwriters shall have received on the Closing Date an opinion and statement of Xxxxxx, Xxxxx Xxxx & Xxxxxxx Xxxxxx LLP, outside special intellectual property counsel for the UnderwritersZavante, dated the Closing Date, substantially in the form attached hereto as Exhibit E.
(g) The Underwriters shall have received on the Closing Date an opinion of Xxxxxxxxx & Xxxxxxx LLP, United States counsel for the Underwriters in connection with respect the offering, dated the Closing Date, in form and substance reasonably satisfactory to such matters as may be requested by the UnderwritersManager.
(gh) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx Xxx, Irish counsel for the Underwriters in connection with the offering, dated the Closing Date, in form and substance reasonably satisfactory to the Manager.
(i) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Deloitte & Touche KPMG LLP, independent public accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, the Time of Sale Prospectus and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
(hj) The Offered Shares Underwriters shall have been approved for listing received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Ernst & Young LLP, independent public accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information of Zavante contained or incorporated by reference in the Registration Statement, the Time of Sale Prospectus and the Prospectus; provided that the letter delivered on the NYSE, and satisfactory evidence thereof Closing Date shall have been provided to youuse a “cut-off date” not earlier than the date of the closing of the Acquisition.
(i) FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(jk) The “lock-up” agreements, each substantially in the form of Exhibit D A hereto, between you and Genco the Manager and each officer of the officers and director directors of the Company relating to sales and certain other dispositions of shares of Common Stock Ordinary Shares or certain other securities, delivered to you the Manager on or before the date hereof, shall be in full force and effect on the Closing Date. .
(l) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by the chief financial officer of the Company on behalf of the Company, with respect to certain financial data contained in the Time of Sale Prospectus and the Prospectus, in form and substance reasonably satisfactory to the Manager.
(m) The several obligations of the Underwriters to purchase Optional subscribe for Additional Shares hereunder are subject to the delivery to you the Manager on the applicable Option Closing Date of the following:
(i) a certificate, dated the Option Closing Date and signed by an executive officer of the Company, on behalf of the Company, confirming that the certificate delivered on the Closing Date pursuant to Section 5(b) hereof remains true and correct as of such Option Closing Date;
(ii) an opinion of Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP, U.S. counsel for the Company, dated the Option Closing Date, relating to the Additional Shares to be subscribed for on such Option Closing Date and otherwise to the same effect as the opinion required by Section 5(c) hereof;
(iii) an opinion of A&L Goodbody, Irish counsel for the Company, dated the Option Closing Date, relating to the Additional Shares to be subscribed for on such Option Closing Date and otherwise to the same effect as the opinion required by Section 5(d) hereof;
(iv) an opinion of (i) Xxxxxxx & Partner, special intellectual property counsel for the Company, dated the Option Closing Date, relating to the Additional Shares to be subscribed for on such Option Closing Date and otherwise to the same effect as the opinion required by Section 5(e)(i) hereof, and (ii) Fitzpatrick, Cella, Xxxxxx & Xxxxxx, special intellectual property counsel for the Company, dated the Option Closing Date, relating to the Additional Shares to be subscribed for on such Option Closing Date and otherwise to the same effect as the opinion required by Section 5(e)(ii) hereof;
(v) an opinion of Xxxxx Xxxx & Xxxxxx LLP, outside special intellectual property counsel for Zavante, dated the Option Closing Date, relating to the Additional Shares to be subscribed for on such Option Closing Date and otherwise to the same effect as the opinion required by Section 5(f) hereof;
(vi) an opinion of Xxxxxxxxx & Xxxxxxx LLP, U.S. counsel for the Underwriters in connection with the offering, dated the Option Closing Date, relating to the Additional Shares to be subscribed for on such Option Closing Date and otherwise to the same effect as the opinion required by Section 5(g) hereof;
(vii) an opinion of Xxxxxx Xxx, Irish counsel for the Underwriters in connection with the offering, dated the Option Closing Date, relating to the Additional Shares to be subscribed for on such Option Closing Date and otherwise to the same effect as the opinion required by Section 5(h) hereof;
(viii) a letter dated the Option Closing Date, in form and substance satisfactory to the Underwriters, from KPMG LLP, independent public accountants, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 5(i) hereof; provided that the letter delivered on the Option Closing Date shall use a “cut-off date” not earlier than three business days prior to such Option Closing Date;
(ix) a letter dated the Option Closing Date, in form and substance satisfactory to the Underwriters, from Ernst & Young LLP, independent public accountants, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 5(j) hereof; provided that the letter delivered on the Option Closing Date shall use a “cut-off date” not earlier than the date of the closing of the Acquisition; and
(x) such other documents as you the Manager may reasonably request with respect to the good standing (or such equivalent concept to the extent it exists under the law of Ireland) of the Company, the due authorization and issuance of the Optional Additional Shares to be sold allotted and issued on such Option Closing Date and other matters related to the issuance of such Optional Additional Shares.
Appears in 1 contract
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters Underwriter are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined for purposes of Section 15c3-1(c)(2)(vi)(FRule 436(g)(2) under the Exchange Securities Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus as of the date of this Agreement (excluding any amendments or supplements thereto) that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Offered Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Underwriters Underwriter shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i6(a)(i) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and that the Company has complied in all material respects with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters Underwriter shall have received on the Closing Date an opinion and statement of Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP, outside counsel for the Company, dated the Closing Date, to in the effect set forth in form attached hereto as Exhibit A hereto.B.
(d) The Underwriters Underwriter shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxxx P.CLLP, Xxxxxxxx Islands counsel for Carlyle Partners IV, L.P. and XX XX Coinvestment, L.P. (collectively, the Company“Carlyle Entities”), dated the Closing Date, to in the effect set forth in form attached hereto as Exhibit B hereto.C.
(e) The Underwriters Underwriter shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxx LLP, special U.S. maritime environmental counsel and Liberian counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit C hereto.
(f) The Underwriters shall have received on the Closing Date an opinion and statement of Xxxxxx, Xxxxx & Xxxxxxx Procter LLP, counsel for the UnderwritersUnderwriter, dated the Closing Date, with respect to such matters as the Underwriter may reasonably request. With respect to paragraphs (a), (b), (c) and (d) of the form of opinion attached hereto as Exhibit B, Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP may state that its statements and beliefs therein are based upon their participation in the preparation of the Registration Statement, the Time of Sale Prospectus and the Prospectus and any amendments or supplements thereto and review and discussion of the contents thereof, but are without independent check or verification, except as specified. With respect to the opinions in the third, fourth, fifth, sixth, seventh and eighth sentences of paragraph one and the second sentence of paragraph two of the form of opinion attached hereto as Exhibit B, Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP may rely upon an opinion or opinions of counsel for such subsidiaries; provided that (A) each such counsel for such subsidiaries is reasonably satisfactory to your counsel and (B) a copy of each opinion so relied upon is delivered to the Underwriter and is in form and substance reasonably satisfactory to the Underwriter’s counsel. The opinion of Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP described in Section 6(c) above and the opinion of Xxxxxx & Xxxxxxx LLP described in Section 6(d) above, shall be requested by rendered to the UnderwritersUnderwriter at the request of the Company or one or more of the Selling Stockholders, as the case may be, and shall so state therein.
(gf) The Underwriters Underwriter shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance reasonably satisfactory to the UnderwritersUnderwriter, from Deloitte & Touche LLPPricewaterhouseCoopers LLP and PricewaterhouseCoopers Société coopérative, independent public accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, the Time of Sale Prospectus and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
(h) The Offered Shares shall have been approved for listing on the NYSE, and satisfactory evidence thereof shall have been provided to you.
(i) FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(jg) The “lock-lock up” agreements, each substantially in the form of Exhibit D A hereto, between you the Underwriter and Genco and each officer and director of the Company Selling Stockholders relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you the Underwriter on or before the date hereof, shall be in full force and effect on the Closing Date. The several obligations of the Underwriters to purchase Optional Shares hereunder are subject to the delivery to you on the applicable Option Closing Date of such documents as you may reasonably request with respect to the good standing of the Company, the due authorization and issuance of the Optional Shares to be sold on such Option Closing Date and other matters related to the issuance of such Optional Shares.
Appears in 1 contract
Samples: Underwriting Agreement (SS&C Technologies Holdings Inc)
Conditions to the Underwriters’ Obligations. The obligations of the Company to sell the Shares to the Underwriters and the several obligations of the Underwriters to purchase and pay for the Shares on the Closing Date are subject to the condition that no stop order suspending the effectiveness of the Registration Statement shall have been issued under the Securities Act or proceedings therefor initiated or threatened by the Commission. The several obligations of the Underwriters are subject to the following further conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined for purposes in Section 3(a)(62) of Section 15c3-1(c)(2)(vi)(F) under the Exchange Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus as of on the date of this Agreement that, in your judgmentany such case, in the judgment of Xxxxxx Xxxxxxx & Co. LLC (“Xxxxxx Xxxxxxx”), is material and adverse and that makes it, in your judgmentthe judgment of Xxxxxx Xxxxxxx, impracticable to market the Offered Shares on the terms and in the manner contemplated in the Time of Sale Prospectus or the Prospectus.
(b) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received the following on the Closing Date Date, each of which shall be in form and substance satisfactory to the Representatives (i) an opinion and statement of Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLPX. Xxxxxxxxx, outside counsel for Esq., Assistant General Counsel of the Company, dated the Closing Date, (ii) an opinion of Cravath, Swaine & Xxxxx LLP, special counsel to the effect set forth in Exhibit A heretoCompany, dated the Closing Date, (iii) a negative assurance statement of Cravath, Swaine & Xxxxx LLP, special counsel to the Company, dated the Closing Date, (iv) an opinion of Xxxxxxxxx & Xxxxxxx LLP, special tax counsel to the Company, dated the Closing Date, and (v) an opinion of K&L Gates LLP, special Washington counsel to the Company, dated the Closing Date.
(d) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxxx P.C, Xxxxxxxx Islands counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit B hereto.
(e) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxx LLP, special U.S. maritime environmental counsel and Liberian counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit C hereto.
(f) The Underwriters shall have received on the Closing Date an opinion and negative assurance statement of Xxxxxx, Xxxxx & Xxxxxxx Sidley Austin LLP, counsel for the Underwriters, dated the Closing Date, with respect in form and substance satisfactory to such matters as may be requested by the Underwritersyou.
(ge) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, (i) from Deloitte & Touche KPMG LLP, an independent registered public accountantsaccounting firm, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the Company’s historical and pro forma financial statements and certain financial information, and (ii) from Deloitte & Touche LLP, an independent registered public accounting firm, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the Acquired Company’s financial statements and certain financial information, in each case contained in or incorporated by reference into the Registration Statement, the Time of Sale Prospectus and the ProspectusProspectus and any amendments or supplements thereto; provided that the letter letters delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
(h) The Offered Shares shall have been approved for listing on the NYSE, and satisfactory evidence thereof shall have been provided to you.
(i) FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(jf) The “lock-up” agreements, each substantially in the form of Exhibit D A hereto, between you and Genco the officers and each officer and director directors of the Company listed in Exhibit B hereto relating to sales and certain other dispositions of shares of Common Stock or and certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date. The several obligations of the Underwriters to purchase Optional Additional Shares hereunder are subject to the delivery to you on the applicable Option Closing Date of such documents and opinions as you may reasonably request with respect to the good standing of the Company, the due authorization and issuance of the Optional Additional Shares to be sold on such Option Closing Date and other matters related to the issuance of such Optional Additional Shares.
Appears in 1 contract
Conditions to the Underwriters’ Obligations. The obligation of the Selling Shareholder to sell the Shares to the Underwriters and the several obligations of the Underwriters to purchase and pay for the Shares on the Closing Date are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
, (i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate no order suspending the direction effectiveness of the possible changeRegistration Statement shall be in effect, in the rating accorded any of the securities of the Company and no proceeding for such purpose or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined for purposes of pursuant to Section 15c3-1(c)(2)(vi)(F) 8A under the Exchange Act; and
Securities Act shall be pending before or threatened by the Commission and (ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus as of the date of this Agreement that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Offered Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Underwriters shall have received on the Closing Date Date, a certificate, dated the Closing Date Date, and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i6(a) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date Date, and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date Date, an opinion and statement negative assurance letter of Xxxxxx Xxxxx Xxxxxxxx Axxxx & Xxxxxxx Overy LLP, outside counsel for the Company, each dated the Closing Date, in form and substance reasonably satisfactory to the effect set forth in Exhibit A heretoUnderwriters.
(d) The Underwriters shall have received on the Closing Date Date, an opinion from each of Xxxxxx Kxxxxxxx & Xxxxxxx P.CExxxx International LLP (“Kxxxxxxx & Exxxx”) and Elvinger Hoss Prussen, Xxxxxxxx Islands société anonyme (“Elvinger”), each counsel for the CompanySelling Shareholder, each dated the Closing Date, in form and substance reasonably satisfactory to the effect set forth Underwriters. With respect to this Section 6(d), Kxxxxxxx & Exxxx may rely upon the opinion of Elvinger and, with respect to factual matters, upon the representations of the Selling Shareholder contained herein and in Exhibit B heretoother documents and instruments.
(e) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxx LLP, special U.S. maritime environmental counsel and Liberian counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit C hereto.
(f) The Underwriters shall have received on the Closing Date an opinion and statement negative assurance letter of Xxxxxx, Xxxxx Lxxxxx & Xxxxxxx Wxxxxxx LLP, counsel for the Underwriters, dated the Closing Date, with respect in form and substance reasonably satisfactory to them and such matters counsel shall have received such papers and information as they may be requested by the Underwritersreasonably request to enable them to pass upon such matters.
(gf) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Deloitte each of (i) Ernst & Touche Young LLP, independent public accountantsaccountants with respect to the Company and (ii) KPMG, independent public accountants with respect to Mobile Mini, in each case containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements, pro forma financial statements (with respect to the comfort letter provided by Ernst & Young LLP) and certain financial information contained in the Registration Statement, the Time of Sale Prospectus and the Prospectus; provided that the each letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
(h) The Offered Shares shall have been approved for listing on the NYSE, and satisfactory evidence thereof shall have been provided to you.
(i) FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(jg) The “lock-up” agreements, each substantially in the form of Exhibit D A hereto, between you and Genco the Selling Shareholder, or the officers and each officer and director directors of the Company relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date.
(h) At the time of execution of this Agreement, the Underwriters shall have received from the Chief Financial Officer of the Company a certificate, in substantially the form set forth on Exhibit B hereto (the “Initial CFO Certificate”). At the Closing Date, the Underwriters shall have received from the Chief Financial Officer of the Company a certificate (the “Bring-Down CFO Certificate”) (i) stating, as of the date of the Bring-Down CFO Certificate (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Time of Sale Prospectus, as of a date not more than three days prior to the date of the Bring-Down CFO Certificate), the conclusions and findings of the Chief Financial Officer with respect to the financial information and other matters covered by the Initial CFO Certificate and (ii) confirming in all material respects the conclusions and findings set forth in the Initial CFO Certificate.
(i) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements relating to the offering of the Shares.
(j) There shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization”, as such term is defined in Section 3(a)(62) of the Exchange Act.
(k) The Underwriters shall have received (a) a certificate with respect to the Company’s status as not a “United States real property holding corporation,” dated not more than thirty (30) days prior to the Closing Date, as described in Treasury Regulations Sections 1.897-2(h) and 1.1445-2(c)(3), and (b) proof of delivery to the IRS of the required notice, as described in Treasury Regulations 1.897-2(h)(2).
(l) The Underwriters shall have received a properly completed and executed Internal Revenue Service (“IRS”) Form W-9 or an applicable IRS Form W-8, as appropriate, of the Selling Shareholder, dated on or prior to the Closing Date, together with all required attachments to such form, establishing a complete exemption from United States backup withholding tax.
(m) The several obligations of the Underwriters to purchase Optional Additional Shares hereunder are subject to the delivery to you on the applicable Option Closing Date of the following:
(i) a certificate, dated the Option Closing Date and signed by an executive officer of the Company, confirming that the certificate delivered on the Closing Date pursuant to Section 5(b) hereof remains true and correct as of such Option Closing Date;
(ii) an opinion and negative assurance letter of Axxxx & Oxxxx LLP, outside counsel for the Company, dated the Option Closing Date, relating to the Additional Shares to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 5(c) hereof;
(iii) an opinion from each of Kxxxxxxx & Exxxx and Elvinger, each counsel for the Selling Shareholder, each dated the Option Closing Date, relating to the Additional Shares to be purchased on such Option Closing Date and otherwise to the same effect as the opinions required by Section 5(d) hereof;
(iv) an opinion and negative assurance letter of Lxxxxx & Wxxxxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Additional Shares to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 5(e) hereof;
(v) a letter dated the Option Closing Date, in form and substance satisfactory to the Underwriters, from each of (i) Ernst & Young LLP, independent public accountants with respect to the Company and (ii) KPMG, independent public accountants with respect to Mobile Mini, in each case substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 5(f) hereof; provided that each letter delivered on the Option Closing Date shall use a “cut-off date” not earlier than three business days prior to such Option Closing Date;
(vi) a Bring-Down CFO Certificate, dated the Option Closing Date, (i) stating, as of the date of the Bring-Down CFO Certificate (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Time of Sale Prospectus, as of a date not more than three days prior to the date of the Bring-Down CFO Certificate), the conclusions and findings of the Chief Financial Officer with respect to the financial information and other matters covered by the Initial CFO Certificate and (ii) confirming in all material respects the conclusions and findings set forth in the Initial CFO Certificate; and
(vii) such other documents as you may reasonably request with respect to the good standing of the Company, the due authorization and issuance of the Optional Additional Shares to be sold on such Option Closing Date and other matters related to the issuance of such Optional Additional Shares.
Appears in 1 contract
Samples: Underwriting Agreement (WillScot Mobile Mini Holdings Corp.)
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters to purchase and pay for the Firm Securities on the Closing Date are subject to the following conditions:
(a) no order suspending the effectiveness of the Registration Statement shall be in effect, and no proceeding for such purpose or pursuant to Section 8A under the Securities Act shall be pending before or threatened by the Commission;
(b) The representations and warranties of the Company contained herein shall be true and correct on the date hereof and on and as of the Closing Date; and the statements of the Company and its officers made in any certificates delivered pursuant to this Agreement be true and correct on and as of the Closing Date.
(c) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) , there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined for purposes of Section 15c3-1(c)(2)(vi)(F) under the Exchange Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in Material Adverse Effect since the Time of Sale Prospectus as of the date of this Agreement that, in your the Representatives’ judgment, is material and adverse and that makes it, in your the Representatives’ judgment, impracticable to market the Offered Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(bd) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i) above that subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred a Material Adverse Effect since the Time of Sale Prospectus and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the date hereof and as of the Closing Date and that the Company has complied in all material respects with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(ce) (i) The Underwriters shall have received on the Closing Date an opinion and statement negative assurance letter of Xxxxxx Wachtell, Lipton, Xxxxx Xxxxxxxx & Xxxxxxx LLPXxxx, outside counsel for the CompanyCompany (“Wachtell Lipton”), dated the Closing Date, to the effect set forth in Exhibit A hereto.
(d) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxxx P.C, Xxxxxxxx Islands counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit B hereto.
(e) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxx LLP, special U.S. maritime environmental counsel and Liberian counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit C hereto.
(f) The Underwriters shall have received on the Closing Date an opinion and statement of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel for the Underwriters, dated the Closing Date, with respect to such matters as may be requested by the Underwriters.
(g) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Deloitte & Touche LLP, independent public accountants, 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 substantially in the Registration Statement, the Time of Sale Prospectus forms agreed to between Wachtell Lipton and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than DPW (as defined below) prior to the date hereof.
(h) The Offered Shares . Such opinion and negative assurance letter shall have been approved for listing on the NYSE, and satisfactory evidence thereof shall have been provided to you.
(i) FINRA shall have raised no objection be rendered to the fairness and reasonableness of Underwriters at the underwriting terms and arrangements.
(j) The “lock-up” agreements, each substantially in the form of Exhibit D hereto, between you and Genco and each officer and director request of the Company relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date. The several obligations of the Underwriters to purchase Optional Shares hereunder are subject to the delivery to you on the applicable Option Closing Date of such documents as you may reasonably request with respect to the good standing of the Company, the due authorization and issuance of the Optional Shares to be sold on such Option Closing Date and other matters related to the issuance of such Optional Sharesso state therein.
Appears in 1 contract
Conditions to the Underwriters’ Obligations. The obligations of the Company to sell the ADSs to the Underwriters and the several obligations of the Underwriters to purchase and pay for the ADSs on the Closing Date are subject to the condition that the Registration Statement shall have become effective not later than [●] (New York City time) on the date hereof. The several obligations of the Underwriters are subject to the following further conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined for purposes of Section 15c3-1(c)(2)(vi)(F) under the Exchange Act; and
(ii) Date there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiariessubsidiaries and Affiliated Entities, taken as a whole, from that set forth in the Time of Sale Prospectus as of the date of this Agreement that, in your judgmentthe judgment of the Representatives, is material and adverse and that makes it, in your judgmentthe judgment of the Representatives, impracticable to market the Offered Shares ADSs on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i6(a), Section 6(o) above and Section 6(v) and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an opinion and statement negative assurance letter of Xxxxxx Xxxxx Xxxxxxxx Skadden, Arps, Slate, Xxxxxxx & Xxxxxxx Xxxx LLP, outside U.S. counsel for the Company, dated the Closing Date, in form and substance reasonably satisfactory to the effect set forth in Exhibit A heretoUnderwriters.
(d) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx Westwood & Xxxxxxx P.CRiegels, Xxxxxxxx Cayman Islands counsel for the Company, dated the Closing Date, in form and substance reasonably satisfactory to the effect set forth in Exhibit B heretoUnderwriters.
(e) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxx LLPTian Yuan Law Firm, special U.S. maritime environmental counsel and Liberian PRC counsel for the Company, dated the Closing Date, in form and substance reasonably satisfactory to the effect set forth in Exhibit C heretoUnderwriters.
(f) The Underwriters shall have received on the Closing Date an opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, Hong Kong counsel for the Company, dated the Closing Date, in form and statement substance reasonably satisfactory to the Underwriters.
(g) [Reserved.]
(h) [Reserved.] The opinions of Xxxxxx, Xxxxx counsel for the Company (except for the opinion of PRC counsel for the Company) described above shall be rendered to the Underwriters at the request of the Company and shall so state therein.
(i) The Underwriters shall have received on the Closing Date an opinion and negative assurance letter of Xxxxxx & Xxxxxxx LLP, U.S. counsel for the Underwriters, dated the Closing Date, with respect in form and substance satisfactory to such matters as may be requested by the Underwriters.
(gj) The Underwriters shall have received on the Closing Date an opinion of CM Law Firm, PRC counsel for the Underwriters, dated the Closing Date, in form and substance satisfactory to the Underwriters.
(k) The Underwriters shall have received on the Closing Date an opinion of Xxxxxxxxx Xxxxxxx Xxxx & Xxxxx LLP, counsel for the Depositary, dated the Closing Date, in form and substance satisfactory to the Underwriters.
(l) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Deloitte & Touche PricewaterhouseCoopers Xxxxx Xxxx LLP, independent public accountants, 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, the Time of Sale Prospectus and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
(h) The Offered Shares shall have been approved for listing on the NYSE, and satisfactory evidence thereof shall have been provided to you.
(i) FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(jm) The “lock-up” agreements, each substantially in the form of Exhibit D A hereto, between you the Company, the Representatives and Genco certain shareholders, officers and each officer and director directors of the Company relating to sales and certain other dispositions of shares of Common Stock ADSs, Ordinary Shares or certain other securities, delivered to you the Representatives on or before the date hereof, shall be in full force and effect on the Closing Date. .
(n) The several obligations of the Underwriters to purchase Optional Shares Additional ADSs hereunder are subject to the delivery to you the Representatives on the applicable Option Closing Date of the following:
(i) a certificate, dated the Option Closing Date and signed by an executive officer of the Company, confirming that the certificate delivered on the Closing Date pursuant to Section 6(b) hereof remains true and correct as of such Option Closing Date;
(ii) an opinion and negative assurance letter Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, U.S. counsel for the Company, dated the Option Closing Date, relating to the Additional ADSs to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof;
(iii) an opinion of Xxxxxx Westwood & Riegels, Cayman Islands counsel for the Company, dated the Option Closing Date, relating to the Additional ADSs to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(d) hereof;
(iv) an opinion of Tian Yuan Law Firm, PRC counsel for the Company, dated the Option Closing Date, relating to the Additional ADSs to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(e) hereof;
(v) an opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, Hong Kong counsel for the Company, dated the Option Closing Date, relating to the Additional ADSs to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(f) hereof;
(vi) an opinion and negative assurance letter of Xxxxxx & Xxxxxxx LLP, U.S. counsel for the Underwriters, dated the Option Closing Date, relating to the Additional ADSs to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(i) hereof;
(vii) an opinion of CM Law Firm, PRC counsel for the Underwriters, dated the Option Closing Date, relating to the Additional ADSs to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(j) hereof;
(viii) an opinion of Xxxxxxxxx Xxxxxxx Xxxx & Xxxxx LLP, counsel for the Depositary, dated the Option Closing Date, relating to the Additional ADSs to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(k) hereof;
(ix) a letter dated the Option Closing Date, in form and substance satisfactory to the Underwriters, from PricewaterhouseCoopers Xxxxx Xxxx LLP, independent public accountants, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(l) hereof; provided that the letter delivered on the Option Closing Date shall use a “cut-off date” not earlier than three business days prior to such Option Closing Date; and
(x) such other documents as you the Representatives may reasonably request with respect to the good standing of the Company, the due authorization and issuance of the Optional Shares Additional ADSs to be sold on such Option Closing Date and other matters related to the issuance of such Optional SharesAdditional ADSs.
(o) There shall not have been any adverse legislative or regulatory developments in the PRC following the signing of this Agreement, which in the Representatives’ sole judgment in good faith after consultation with the Company, would make it inadvisable or impractical to proceed with the public offering or the delivery of the ADSs at the Closing Date or any Option Closing Date, as the case may be, on the terms and in the manner contemplated in this Agreement.
(p) The Company and the Depositary shall have executed and delivered the Deposit Agreement and, in the case of the Company, a side letter (the “Depositary Side Letter”) addressed to the Depositary, instructing the Depositary not to accept any shareholder’s deposit of Ordinary Shares in the Company’s American Depositary Receipt facility or issue any new ADSs evidencing the ADSs to any shareholder or any third party, unless consented to by the Company, and the Deposit Agreement shall be in full force and effect on the Closing Date. The Company and the Depositary shall have taken all actions necessary to permit the deposit of the ADSs and the issuance of the ADSs representing such Ordinary Shares in accordance with the Deposit Agreement.
(q) The Depositary shall have furnished or caused to be furnished to the Underwriters a certificate satisfactory to the Representatives of one of its authorized officers with respect to the deposit with it of the ADSs against issuance of the ADSs, the execution, issuance, countersignature and delivery of the ADSs pursuant to the Deposit Agreement and such other matters related thereto as the Representatives may reasonably request.
(r) The ADSs representing the ADSs shall have been approved for listing on the Nasdaq Global Select Market, subject only to official notice of issuance.
(s) If the Company elects to rely upon Rule 462(b) under the Securities Act, the Company shall have filed a Rule 462 Registration Statement with the Commission in compliance with Rule 462(b) promptly after 4:00 p.m., New York City time, on the date of this Agreement, and the Company shall have at the time of filing either paid to the Commission the filing fee for the Rule 462 Registration Statement or given irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Securities Act.
(t) The Company shall have filed the Prospectus with the Commission (including the information required by Rule 430A under the Securities Act) in the manner and within the time period required by Rule 424(b) under the Securities Act; or the Company shall have filed a post-effective amendment to the Registration Statement containing the information required by such Rule 430A, and such post-effective amendment shall have become effective.
(u) No free writing prospectus, Prospectus or amendment or supplement to the Registration Statement, the ADS Registration Statement or the Prospectus shall have been filed to which the Representatives object in writing.
(v) No stop order suspending the effectiveness of the Registration Statement, the ADS Registration Statement, any Rule 462 Registration Statement, or any post-effective amendment to the Registration Statement, shall be in effect and no proceedings for such purpose shall have been instituted or threatened by the Commission.
(w) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting, or other arrangements of the transactions contemplated hereby.
(x) At or prior to the Closing Date and each Option Closing Date, the ADSs shall be eligible for clearance and settlement through the facilities of the DTC.
(y) On the Closing Date or Option Closing Date, as the case may be, the Representatives and counsel for the Underwriters shall have received such information, documents, certificates and opinions as they may reasonably require for the purposes of enabling them to pass upon the accuracy and completeness of any statement in the Registration Statement, the Time of Sale Prospectus and the Prospectus, issuance and sale of the ADSs as contemplated herein, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of any of the conditions or agreements, herein contained.
Appears in 1 contract
Samples: Underwriting Agreement (Kanzhun LTD)
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined for purposes of Section 15c3-1(c)(2)(vi)(F) under the Exchange Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a wholeTrust, from that set forth in each of the Time of Sale Prospectus and the Prospectuses as of the date of this Agreement that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Offered Shares Units on the terms and in the manner contemplated in each of the Time of Sale ProspectusProspectus and the Prospectuses.
(b) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i) above and to the effect that the representations and warranties of the Company Trust and the Manager contained in this Agreement are true and correct as of the Closing Date and that the Company has Trust and the Manager have complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date and on the Closing Date, all of the physical silver bullion owned by the Trust is held by the Mint as custodian pursuant to the Silver Storage Agreement as described in each of the Time of Sale Prospectus and the Prospectuses; the Underwriters shall have received on the Closing Date a certificate signed by an authorized signatory of the Trust and a certificate signed by an executive officer of the Manager, each dated the Closing Date, to the effect set forth in this Section 5(b) and the effect set forth in Section 5(a) above, as applicable. The officer Manager signing and delivering such certificate may rely upon the best of his or her its knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an opinion and statement of Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx Blaikie LLP, outside Canadian counsel for the CompanyTrust and the Manager, dated the Closing Date, to the effect set forth in Exhibit A hereto.that:
(di) The Underwriters shall have received on Trust has been duly established and is validly subsisting under the Closing Date an opinion Trust Agreement and as a trust under the laws of Xxxxxx & Xxxxxxx P.Cthe Province of Ontario, Xxxxxxxx Islands counsel for the Company, dated the Closing Datehas all requisite power and authority to own its property and assets, to conduct its business and to invest in accordance with the effect set forth investment objective as described in Exhibit B hereto.
(e) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxx LLP, special U.S. maritime environmental counsel and Liberian counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit C hereto.
(f) The Underwriters shall have received on the Closing Date an opinion and statement of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel for the Underwriters, dated the Closing Date, with respect to such matters as may be requested by the Underwriters.
(g) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Deloitte & Touche LLP, independent public accountants, 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, the Time of Sale Prospectus and the Prospectus; provided Prospectuses and carry out its obligations hereunder and to issue, sell and deliver the Units in accordance with the provisions of this Agreement, is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business requires such qualification, except to the extent that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
(h) The Offered Shares shall have been approved for listing on the NYSE, and satisfactory evidence thereof shall have been provided failure to you.
(i) FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(j) The “lock-up” agreements, each substantially in the form of Exhibit D hereto, between you and Genco and each officer and director of the Company relating to sales and certain other dispositions of shares of Common Stock be so qualified or certain other securities, delivered to you on or before the date hereof, shall be in full force and good standing would not have a material adverse effect on the Closing Date. The several Trust, and that the Trust Agreement constitutes legal, valid, binding and enforceable obligations of the Underwriters trustee thereunder;
(ii) the Manager has been duly organized and is validly existing as a limited partnership under the laws of the Province of Ontario, has the capacity and power to purchase Optional Shares hereunder are subject own its property and assets and to conduct its business as described in each of the Time of Sale Prospectus and the Prospectuses and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property or assets requires such qualification, except to the delivery extent that the failure to you be so qualified or be in good standing would not have a material adverse effect on the applicable Option Closing Date Manager;
(iii) the authorized unit capital of such documents the Trust conforms as you may reasonably request with respect to legal matters to the good standing description thereof contained in each of the Company, Time of Sale Prospectus and the due authorization and issuance Prospectuses;
(iv) the units of the Optional Shares to be sold on such Option Closing Date and other matters related Trust outstanding prior to the issuance of the Units to be sold by the Trust have been duly authorized and are validly issued, fully paid and non-assessable;
(v) the Units to be sold by the Trust have been duly authorized and, when issued and delivered in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Optional Shares.Units will not be subject to any preemptive or similar rights;
(vi) this Agreement has been duly authorized, executed and, in so far as delivery is governed by Ontario law, delivered by each of the Trust and the Manager;
(vii) the execution and delivery by the Trust and the Manager of this Agreement, and the performance by the Trust and the Manager of their respective obligations under this Agreement and the Related Agreements do not and will not contravene any provision of applicable law or the Trust Agreement, the limited partnership agreement, of the Manager, as applicable, or, to the best of such counsel’s knowledge, any agreement or other instrument binding upon the Trust or the Manager that is material to the Trust or the Manager (including the Related Agreements), as applicable, or, to the best of such counsel’s knowledge, any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Trust or the Manager, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency (including without limitation any Canadian Court or Canadian federal, provincial or territorial governmental authority) is required for the performance by the Trust and the Manager of their respective obligations under this Agreement;
(viii) the statements relating to legal matters, documents or proceedings included in (1) the Time of Sale Prospectus and the Prospectuses under the caption “Description of the Units,” (2) the Prospectuses under the caption “Plan of Distribution” and (3) the indemnification provisions relating to directors, officers and controlling persons of the Trust in Part II of the Registration Statement, in each case fairly summarize in all material respects such matters, documents or proceedings;
(ix) subject to the qualifications, assumptions, limitations and understandings set out therein, the statements as to matters of the federal laws of Canada set out in the Prospectuses under the caption “Material Tax Considerations — Canadian Federal Income Tax Considerations” fairly describe the principal Canadian federal income tax considerations as at the date thereof generally applicable under the Tax Act to a prospective purchaser of Units pursuant to the Prospectuses;
(x) subject to the qualifications, assumptions, limitations and understandings set out in the Prospectuses under the caption “Eligibility Under the Tax Act for Investment by Canadian Exempt Plans”, the Units will be qualified investments under the Tax Act for trusts governed by registered retirement savings plans, registered retirement income funds, deferred profit sharing plans, registered disability savings plans and registered education savings plans as well as tax-free savings accounts;
(xi) the Trust Agreement has been duly authorized, executed and delivered by the Manager and constitutes legal, valid and binding obligations of the Manager, enforceable against the Manager in accordance with its terms;
(xii) the Manager has been duly appointed as manager of the Trust pursuant to the Trust Agreement and the Management Agreement and the Management Agreement has been duly authorized, executed and delivered by each of the Trust and the Manager and is enforceable against each such party in accordance with its terms;
(xiii) the Mint, at its principal office in Ottawa, Ontario has been duly appointed as custodian of the physical silver bullion owned by the Trust pursuant to the Silver Storage Agreement, and such agreement has been duly authorized, executed and delivered by the Manager on behalf of the Trust and constitutes legal, valid and binding obligations of the Trust, enforceable against the Trust in accordance with its terms;
(xiv) RBC Dexia, at its principal office in Toronto, Ontario has been duly appointed as custodian of the assets, other than physical silver bullion of the Trust pursuant to the Trust Agreement;
(xv) Equity Financial Trust Company at its principal office in Toronto, Ontario has been duly appointed as the registrar, transfer agent and distribution agent for the Units pursuant to the Transfer Agent Agreement and such agreement has been duly authorized, executed and delivered by the Manager on behalf of the Trust and constitutes legal, valid and binding obligations of the Trust, enforceable against the Trust in accordance with its terms;
(xvi) RBC Dexia Investor Services Trust at its principal office in Toronto, Ontario has been duly appointed as the Valuation Agent (as defined in the Prospectus) pursuant to the Valuation Services Agreement and such agreement has been duly authorized, executed and delivered by the Manager and constitutes legal, valid and binding obligations of the Manager, enforceable against the Manager in accordance with its terms;
(xvii) after due inquiry, such counsel does not know of any legal or governmental proceedings pending or threatened to which the Trust or the Manager is a party or to which any of the properties or assets of the Trust or the Manager is subject that are required to be described in the Registration Statement or the Prospectuses and are not so described or of any statutes, regulations, contracts or other documents that are required to be described in the Registration Statement or the Prospectuses or to be filed as exhibits to the Registration Statement or filed with the Canadian Securities Commissions in connection with the filing of the Prospectuses that are not described or filed as required;
(xviii) (A) in the opinion of such counsel, the Prospectuses (except for the financial statements and financial schedules and other financial and statistical data included therein, as to which such counsel need not express any opinion) appears on its face to be appropriately responsive in all material respects to the requirements of Canadian Securities Laws, and (B) nothing has come to the attention of such counsel that causes such counsel to believe that (1) the Registration Statement or the prospectus included therein (except for the financial statements and financial schedules and other financial and statistical data included therein, as to which such counsel need not express any belief) at the time the Registration Statement became effective 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, (2) the Time of Sale Prospectus (except for the financial statements and financial schedules and other financial and statistical data included therein, as to which such counsel need not express any belief) as of the date of this Agreement or as amended or supplemented, if applicable, as of the Closing Date contained or contains 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 or (3) each of the Prospectuses (except for the financial statements and financial schedules and other financial and statistical data included therein, as to which such counsel need not express any belief) as of its date or as amended or supplemented, if applicable, as of the Closing Date contained or contains 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;
(xix) all necessary documents have been filed, all proceedings have been taken and all other legal requirements have been fulfilled under Canadian Securities Laws to qualify the Units to be offered and sold to the public in the Canadian Qualifying Jurisdictions by or through registrants, investment dealers, or brokers duly and properly registered, if required;
(xx) the form of global certificate representing the Units has been duly approved by the Manager on behalf of the Trust and complies with the requirements of applicable law;
(xxi) the Toronto Stock Exchange (the “TSX”) has granted conditional approval for the listing of the Units, subject only to standard listing conditions;
(xxii) no consents, approvals, authorizations or orders under the laws of any of the provinces or territories of Canada or the federal laws of Canada or any court, governmental agency or body of such jurisdictions or any stock exchange are required for the issue and sale of the Units as contemplated in this Agreement or by the Prospectuses; the terms and conditions of the offering of Units hereunder comply with Canadian Securities Laws, including, without limitation National Instrument 81-102, except to the extent that an exemption or waiver therefrom has been obtained from the applicable Canadian Securities Commissions in each of the Canadian Qualifying Jurisdictions;
(xxiii) each of the Canadian Basic Prospectus and the Canadian Final Prospectus (in each case, excluding the financial statements and financial schedules and other financial and statisticial data included therein, as to which such counsel need not express an opinion) including the documents incorporated by reference therein appears on its face as of the date of the Canadian Basic Prospectus and the Canadian Final Prospectus, respectively, to have been appropriately responsive in all material respects to the requirements of Ontario securities laws (as such term is defined in the Securities Act (Ontario)), as interpreted and applied by the OSC;
(xxiv) the Trust’s agreement to the choice of law provisions set forth in Section 14 hereof, will be recognized by a court of competent jurisdiction of the Province of Ontario (an “Ontario Court”), and judgment obtained in a New York court arising out of or in relation to the obligations of the Trust under this Agreement would be enforceable against the Trust in an Ontario Court, subject to customary qualifications. In such counsel’s opinion, there are no reasons under the laws of the Province of Ontario or the federal laws of Canada applicable therein for avoiding the choice of New York law to govern this Agreement;
(xxv) an Ontario Court (A) would recognize the jurisdiction of any federal or state court in the State of New York of competent jurisdiction (a “New York Court”) rendering a judgment that is not impeachable as void or voidable under New York law on the basis of process being served on Xxxxxxx Tu-Sekine of Xxxxxx & Xxxxxx LLP, Suite 350, 0000 X Xxxxxx X.X., Xxxxxxxxxx XX 00000 as the agent of the Trust and the Manager to receive service of process in the United States under this Agreement provided that the Trust and the Manager has not purported to revoke the appointment or Xxxxxxx Tu-Sekine has not terminated the agency or otherwise rendered service on it ineffective, and
Appears in 1 contract
Samples: Underwriting Agreement (Sprott Physical Silver Trust)
Conditions to the Underwriters’ Obligations. The obligations of the Company to sell the Shares to the Underwriters and the several obligations of the Underwriters to purchase and pay for the Shares on the Closing Date are subject to the condition that the Registration Statement shall have become effective not later than 4:00 p.m. (New York City time) on the date hereof. The several obligations of the Underwriters are subject to the following further conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined for purposes of Section 15c3-1(c)(2)(vi)(F) under the Exchange Act; and
(ii) Date there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus as of the date of this Agreement that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Offered Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i5(a) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an opinion and statement negative assurance letter of Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP, outside counsel for the Company, dated the Closing Date, in form and substance reasonably satisfactory to the effect set forth in Exhibit A heretoRepresentatives.
(d) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx Martens Xxxxx & Xxxxxxx P.CBear LLP, Xxxxxxxx Islands outside intellectual property counsel for the Company, dated the Closing Date, in form and substance reasonably satisfactory to the effect set forth in Exhibit B heretoRepresentatives.
(e) The Underwriters shall have received on the Closing Date an opinion and negative assurance letter of Xxxxxx & Xxxxxx LLP, special U.S. maritime environmental counsel and Liberian counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit C hereto.
(f) The Underwriters shall have received on the Closing Date an opinion and statement of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel for the Underwriters, dated the Closing Date, with in form and substance reasonably satisfactory to the Representatives. With respect to such matters the negative assurance letters to be delivered pursuant to Sections 5(c) and 5(e) above, Xxxxxx & Xxxxxxx LLP and Xxxxxx LLP may state that their opinions and beliefs are based upon their participation in the preparation of the Registration Statement, the Time of Sale Prospectus and the Prospectus and any amendments or supplements thereto and review and discussion of the contents thereof, but are without independent check or verification, except as may specified. The opinion and negative assurance letter of Xxxxxx & Xxxxxxx LLP described in Section 5(c) above shall be requested by rendered to the UnderwritersUnderwriters at the request of the Company and shall so state therein.
(gf) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Deloitte Ernst & Touche Young LLP, independent public accountants, 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, the Time of Sale Prospectus and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
(h) The Offered Shares shall have been approved for listing on the NYSE, and satisfactory evidence thereof shall have been provided to you.
(i) FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(jg) The “lock-up” agreements, each substantially in the form of Exhibit D A hereto, between you and Genco certain shareholders, officers and each officer and director directors of the Company relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date. .
(h) The Shares shall have been approved for listing on the Nasdaq Global Market.
(i) The Underwriters shall have received, on each of the date hereof and the Closing Date, a certificate of the accuracy of certain financial information included in the Time of Sale Prospectus and the Prospectus, in form and substance reasonably satisfactory to you, signed by the chief financial officer of the Company.
(j) The several obligations of the Underwriters to purchase Optional Additional Shares hereunder are subject to the delivery to you on the applicable Option Closing Date of the following:
(i) a certificate, dated the Option Closing Date and signed by an executive officer of the Company, confirming that the certificate delivered on the Closing Date pursuant to Section 5(b) hereof remains true and correct as of such Option Closing Date;
(ii) an opinion and negative assurance letter of Xxxxxx & Xxxxxxx LLP, outside counsel for the Company, dated the Option Closing Date, relating to the Additional Shares to be purchased on such Option Closing Date and otherwise to the same effect as the opinion and negative assurance letter required by Section 5(c) hereof;
(iii) an opinion of Xxxxxx Martens Xxxxx & Bear LLP, outside intellectual property counsel for the Company, dated the Option Closing Date, substantially in the same form and substance as the opinion required by Section 5(d) hereof.
(iv) an opinion and negative assurance letter of Xxxxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Additional Shares to be purchased on such Option Closing Date and otherwise to the same effect as the opinion and negative assurance letter required by Section 5(e)hereof;
(v) a letter dated the Option Closing Date, in form and substance satisfactory to the Underwriters, from Ernst & Young LLP, independent public accountants, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 5(g) hereof; provided that the letter delivered on the Option Closing Date shall use a “cut-off date” not earlier than three business days prior to such Option Closing Date;
(vi) a certificate, dated the Option Closing Date and signed by the chief financial officer of the Company substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 5(i) hereof; and
(vii) such other documents as you may reasonably request with respect to the good standing of the Company, the due authorization and issuance of the Optional Additional Shares to be sold on such Option Closing Date and other matters related to the issuance of such Optional Additional Shares.
Appears in 1 contract
Samples: Underwriting Agreement (Zentalis Pharmaceuticals, Inc.)
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters Underwriter are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined for purposes of Section 15c3-1(c)(2)(vi)(FRule 436(g)(2) under the Exchange Securities Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus as of the date of this Agreement that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Offered Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Underwriters Underwriter shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i6(a) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters Underwriter shall have received on the Closing Date an opinion and statement of Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx Lovells US LLP, outside counsel for the Company, dated the Closing Date, with respect to the effect matters set forth in Exhibit A on Annex A-1 hereto.
(d) The Underwriters Underwriter shall have received on the Closing Date a negative assurance letter of Xxxxx Lovells US LLP, dated the Closing Date, with respect to the matters set forth on Annex A-2 hereto.
(e) The Underwriter shall have received on the Closing Date a certificate of an officer of Midland Credit Management, Inc., dated the Closing Date, with respect to the matters set forth on Annex A-3 hereto.
(f) The Underwriter shall have received on the Closing Date an opinion of Xxxx, Libra, Thomson, Xxxxxxxx & Xxxxx, Chartered, company counsel registered in Minnesota, dated the Closing Date, with respect to the matters set forth on Annex A-4 hereto.
(g) The Underwriter shall have received on the Closing Date opinions of (i) Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, as U.S. counsel to the Selling Shareholder, with respect to the matters set forth on Annex B-1 hereto; and (ii) Stikeman Elliott LLP, as Canadian counsel to the Selling Shareholder, with respect to the matters set forth on Annex B-2 hereto, each dated the Closing Date.
(h) The Underwriter shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxxx P.C, Xxxxxxxx Islands counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit B hereto.
(e) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxx LLP, special U.S. maritime environmental counsel and Liberian counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit C hereto.
(f) The Underwriters shall have received on the Closing Date an opinion and statement of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel for the UnderwritersUnderwriter, dated as of the Closing Date, with respect as to such matters as you may be requested by the Underwritersrequest.
(gi) The Underwriters Underwriter shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the UnderwritersUnderwriter, from Deloitte & Touche BDO Xxxxxxx, LLP, independent public accountants, 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, the Time of Sale Prospectus and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
(h) The Offered Shares shall have been approved for listing on the NYSE, and satisfactory evidence thereof shall have been provided to you.
(i) FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(j) The “lock-up” agreements, (i) each substantially in the form of Exhibit D A-1 hereto, between you and Genco the officers and each officer and director directors of the Company Company, set forth on Schedule IV hereto, as applicable, and (ii) in the form of Exhibit A-2 hereto, between you, Red Mountain Capital Partners II, L.P. and Red Mountain Capital Partners III, L.P., relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date.
(k) The Underwriter shall have received on the Closing Date a certificate, dated the Closing Date and signed by the Selling Shareholder, to the effect that the representations and warranties of the Selling Shareholder contained in this Agreement are true and correct as of the Closing Date and that the Selling Shareholder has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The several obligations of the Underwriters Underwriter to purchase Optional Additional Shares hereunder are subject to the delivery to you on the applicable Option Closing Date of such documents as you may reasonably request with respect to the good standing of the Company, the due authorization and issuance of the Optional Additional Shares to be sold on such Option Closing Date and other matters related to the issuance of such Optional Additional Shares.
Appears in 1 contract
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters are subject to the following conditions:
(a) Subsequent The Company shall have requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, U.S. counsel for the Company, to furnish to the execution Manager its opinion and delivery negative assurance letter, dated the Closing Date and addressed to the Manager substantially in the form set forth in Exhibit A hereto.
(b) The Company shall have requested and caused Xxxxxx & Xxxxxx LLP, Xxxxxxxx Islands counsel for the Company to furnish to the Manager its opinion, dated the Closing Date and addressed to the Manager substantially in the form set forth in Exhibit B hereto.
(c) The Manager shall have received from Shearman & Sterling LLP, counsel for the Underwriters, such opinions and negative assurance letter, dated the Closing Date and addressed to the Manager, with respect to the issuance and sale of the Securities, the Time of Sale Prospectus (as amended or supplemented at the Closing Date) and other related matters as the Manager may reasonably require, and 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 Manager a certificate of the Company signed by (x) the principal executive officer and (y) 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 Time of Sale Prospectus and any supplements or amendments thereto, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date:;
(iii) since the date of the most recent financial statements included or in the Time of Sale Prospectus (exclusive of any amendment or 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 Time of Sale Prospectus (exclusive of any amendment or supplement thereto); and
(iii) the sale of the Securities hereunder has not been enjoined (temporarily or permanently).
(e) At the date hereof and at the Closing Date, the Company shall have requested and caused PricewaterhouseCoopers Audit to furnish to the Manager letters, dated respectively as of this Agreement and as of the Closing Date, in form and substance reasonably satisfactory to the Manager.
(f) Prior to the Closing Date, an application shall have been made for admission, listing and trading of the Securities on the NYSE, and satisfactory evidence of such shall have been provided to the Manager.
(g) The Company shall have executed the Certificate of Designation. The Deposit Agreement shall have been executed and delivered by each party thereto.
(h) Subsequent to the date of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment or supplement thereto) and the Prospectus (exclusive of any amendment or supplement thereto), there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined for purposes of Section 15c3-1(c)(2)(vi)(F) under the Exchange Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in or affecting the condition, condition (financial or otherwise), or in the prospects, earnings, business or operations properties of the Company and its subsidiaries, subsidiaries taken as a whole, whether or not arising from that transactions in the ordinary course of business, except as set forth in or contemplated in the Time of Sale Prospectus as and the Prospectus (exclusive of any amendment or supplement thereto), the effect of which is, in the sole judgment of the date of this Agreement thatManager, in your judgment, is so material and adverse and that makes it, in your judgment, impracticable as to market make it impractical or inadvisable to proceed with the Offered Shares on offering or delivery of the terms and in the manner Securities as contemplated in the Time of Sale ProspectusProspectus and the Prospectus (exclusive of any amendment or supplement thereto).
(bi) The In the event that the Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer exercise their option provided in Section 2 hereof to purchase all or any portion of the CompanyAdditional Securities, to the effect set forth in Section 5(a)(i) above and to the effect that the representations and warranties of the Company contained herein and the statements in this Agreement are any certificates furnished by any of the Company hereunder shall be true and correct as of the each Option Closing Date and, at the relevant Option Closing Date, the Manager shall have received:
(i) A certificate, dated such Option Closing Date, of (x) the principal executive officer and (y) the principal financial or accounting officer of the Company, confirming that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received they delivered on the Closing Date an pursuant to Section 6(d) hereof remain true and correct as of such Option Closing Date.
(ii) The favorable opinion and statement negative assurance letter of Xxxxxx Xxxxx Xxxxxxx Xxxxxxx & Xxxxxxxx & Xxxxxxx LLP, outside U.S. counsel for the Company, dated the such Option Closing Date, Date and addressed to the Manager, relating to the Additional Securities to be purchased on such Option Closing Date and otherwise to the same effect set forth in Exhibit A heretoas the opinions required by Section 6(a) hereof.
(diii) The Underwriters favorable opinion of The Company shall have received on the Closing Date an opinion of requested and caused Xxxxxx & Xxxxxxx P.CXxxxxx LLP, Xxxxxxxx Islands counsel for the Company, dated the such Option Closing Date, Date and addressed to the Manager, relating to the Additional Securities to be purchased on such Option Closing Date and otherwise to the same effect set forth in Exhibit B heretoas the opinions required by Section 6(b) hereof.
(eiv) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxx LLP, special U.S. maritime environmental counsel and Liberian counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit C hereto.
(f) The Underwriters shall have received on the Closing Date an favorable opinion and statement negative assurance letter of Xxxxxx, Xxxxx Shearman & Xxxxxxx Sterling LLP, counsel for the Underwriters, dated such Option Closing Date and addressed to the Manager, relating to the Additional Securities to be purchased on such Option Closing Date, with respect Date and otherwise to such matters the same effect as may be requested the opinion required by the UnderwritersSection 6(c) hereof.
(gv) The Underwriters shall have received, on each of the date hereof and the Closing Date, a A letter dated the date hereof or the Closing Date, as the case may befrom PricewaterhouseCoopers Audit, in form and substance satisfactory to the UnderwritersManager and dated such Option Closing Date, from Deloitte & Touche LLPsubstantially in the same form and substance as the letter furnished to the Manager pursuant to Section 6(e) hereof, independent public accountantsexcept that the “specified date” in the letter furnished pursuant to this paragraph shall be a date not more than three business days prior to such Option Closing Date. With respect to Section 6(a) above, containing statements counsel for the Company may state that their opinions and information beliefs are based upon their participation in the preparation of the type ordinarily included in accountants’ “comfort letters” to underwriters with Registration Statement, the Time of Sale Prospectus, the Prospectus and any amendments or supplements thereto and review and discussion of the contents thereof, but are without independent check or verification, except as specified. With respect to Section 6(c), Shearman & Sterling LLP may state that their opinions and beliefs are based upon their participation in the financial statements preparation of the Registration Statement, the Time of Sale Prospectus, the Prospectus and certain financial information contained in any amendments or supplements thereto (other than the documents incorporated by reference) and upon review and discussion of the contents of the Registration Statement, the Time of Sale Prospectus and the Prospectus; provided that Prospectus (including documents incorporated by reference), but are without independent check or verification, except as specified. The opinions of counsel for the letter delivered on the Closing Date Company described in Sections 6(a) and 6(b) above shall use a “cut-off date” not earlier than the date hereof.
(h) The Offered Shares shall have been approved for listing on the NYSE, and satisfactory evidence thereof shall have been provided to you.
(i) FINRA shall have raised no objection be rendered to the fairness and reasonableness of Underwriters at the underwriting terms and arrangements.
(j) The “lock-up” agreements, each substantially in the form of Exhibit D hereto, between you and Genco and each officer and director request of the Company relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date. The several obligations of the Underwriters to purchase Optional Shares hereunder are subject to the delivery to you on the applicable Option Closing Date of such documents as you may reasonably request with respect to the good standing of the Company, the due authorization and issuance of the Optional Shares to be sold on such Option Closing Date and other matters related to the issuance of such Optional Sharesso state therein.
Appears in 1 contract
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters hereunder, on each applicable Closing Date, are subject to the following conditions:
(a) Subsequent to the execution and delivery Time of this Agreement Sale and prior to the First Closing Date and the Second Closing Date, as applicable:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined for purposes in Section 3(a)(62) of Section 15c3-1(c)(2)(vi)(F) under the Exchange Act; and
(ii) there shall not have occurred any change, or any development involving a prospective changeMaterial Adverse Change that, in the condition, financial or otherwise, or in the earnings, business or operations judgment of the Company and its subsidiariesRepresentatives, taken as a wholemakes it impracticable or inadvisable to market, from that set forth in offer, sell or deliver the Time of Sale Prospectus as of the date of this Agreement that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Offered Shares Securities being delivered on such Closing Date on the terms and in the manner contemplated in the Time of Sale ProspectusProspectus and by this Agreement.
(b) The Underwriters shall have received on the such Closing Date a certificate, satisfactory to them, dated the such Closing Date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i5(a) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the such Closing Date and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the such Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters Prospectus shall have received been filed with the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for such filing by the rules and regulations under the Securities Act and in accordance with Section 6(a) hereof; the final term sheet contemplated by Section 6(b) hereof, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; no stop order suspending or preventing the use of the Prospectus or any free writing prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the Closing Date an opinion and statement part of Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP, outside counsel for the Company, dated the Closing Date, Commission shall have been complied with to the effect set forth in Exhibit A heretoyour reasonable satisfaction.
(d) The Underwriters shall have received on the such Closing Date an opinion of Xxxxxx Sxxxxxxx Ronon Sxxxxxx & Xxxxxxx P.CYxxxx, Xxxxxxxx Islands LLP, outside counsel for the Company, dated the such Closing Date, to in substantially the effect set forth in Exhibit B form of Annex A hereto.
(e) The Underwriters shall have received on the such Closing Date an opinion of Xxxxxx Sxxxxxxx & Xxxxxx LLP, special U.S. maritime environmental counsel and Liberian counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit C hereto.
(f) The Underwriters shall have received on the Closing Date an opinion and statement of Xxxxxx, Xxxxx & Xxxxxxx Cxxxxxxx LLP, counsel for the Underwriters, dated the such Closing Date, with respect to covering such matters as the Representatives may be requested by the Underwritersreasonably require; and such counsel shall have received such documents and information as they may reasonably request to enable them to pass upon such matters.
(gf) The Underwriters shall have received, on each of the date hereof and the on each Closing Date, a letter dated the date hereof or the applicable Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Deloitte & Touche each of BDO USA LLP and Bxxxx Txxxx Xxxxxxx Xxxxxx, LLP, each of which are independent public accountants, 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 or incorporated by reference in the Registration Statement, the Time of Sale Prospectus and the Prospectus; provided that each of the letter letters delivered on the Closing Date shall use a “cut-off date” not earlier more than three business days prior to the date hereofhereof or such Closing Date, as applicable.
(g) The Company shall have duly filed the Statement with Respect to Shares with the Department of State of the Commonwealth of Pennsylvania prior to the First Closing Date.
(h) The Offered Shares Company shall have been approved for listing authorized the Securities to be sold on such Closing Date to be listed on the NYSE, and satisfactory evidence thereof shall have been provided to you.
(i) FINRA On or prior to such Closing Date, the Company shall have raised no objection furnished to the fairness Representatives such further certificates and reasonableness of the underwriting terms and arrangements.
(j) The “lock-up” agreements, each substantially in the form of Exhibit D hereto, between you and Genco and each officer and director of the Company relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date. The several obligations of the Underwriters to purchase Optional Shares hereunder are subject to the delivery to you on the applicable Option Closing Date of such documents as you the Representatives may reasonably request with respect to the good standing of the Company, the due authorization and issuance of the Optional Shares to be sold on such Option Closing Date and other matters related to the issuance of such Optional Sharesrequest.
Appears in 1 contract
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date and the Option Closing Date, as applicable:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined for purposes in Section 3(a)(62) of Section 15c3-1(c)(2)(vi)(F) under the Exchange Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus as of the date of this Agreement that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Offered Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Underwriters shall have received on the Closing Date and the Option Closing Date, as applicable, a certificate, dated the Closing Date or the Option Closing Date, as applicable, and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date or the Option Closing Date, as applicable, and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date or the Option Closing Date, as applicable. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date and the Option Closing Date, as applicable, an opinion and statement of Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx Lovells US LLP, outside Maryland counsel for the Company, dated the Closing Date or the Option Closing Date, as applicable, in form and substance satisfactory to the Underwriters, to the effect set forth in Exhibit A heretoAnnex II.
(d) The Underwriters shall have received on the Closing Date an opinion and the Option Closing Date, as applicable, opinions of Xxxxxx & Xxxxxxx P.CXxxxx LLP, Xxxxxxxx Islands outside special counsel for the Company, dated the Closing Date or the Option Closing Date, as applicable, in form and substance satisfactory to the Underwriters, to the effect set forth in Exhibit B heretoAnnex III and Annex IV.
(e) The Underwriters shall have received on the Closing Date and the Option Closing Date, as applicable, an opinion of Xxxxxx Fried, Frank, Harris, Xxxxxxx & Xxxxxx LLP, special U.S. maritime environmental counsel and Liberian counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit C hereto.
(f) The Underwriters shall have received on the Closing Date an opinion and statement of Xxxxxx, Xxxxx & Xxxxxxx Xxxxxxxx LLP, counsel for the Underwriters, dated the Closing Date or the Option Closing Date, as applicable, with respect to such matters as the Managers may request. The opinions of counsels for the Company described in Section 5(c) and (d) above shall be requested by rendered to the UnderwritersUnderwriters at the request of the Company and shall so state therein.
(gf) The Underwriters shall have received, on each of the date hereof hereof, the Closing Date and the Option Closing Date, as applicable, a letter dated the date hereof hereof, the Closing Date or the Option Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Deloitte Ernst & Touche Young, LLP, independent public accountants, 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, the Time of Sale Prospectus and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
(h) The Offered Shares shall have been approved for listing on the NYSE, and satisfactory evidence thereof shall have been provided to you.
(i) FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(j) The “lock-up” agreements, each substantially in the form of Exhibit D hereto, between you and Genco and each officer and director of the Company relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date. The several obligations of the Underwriters to purchase Optional Additional Shares hereunder are subject to the delivery to you on the applicable Option Closing Date of the documents indicated in this Section 5 and such other documents as you may reasonably request with respect to the good standing of the Company, the due authorization and issuance of the Optional Additional Shares to be sold on such Option Closing Date and other matters related to the issuance of such Optional Additional Shares.
Appears in 1 contract
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters are subject to the following further conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined for purposes in Section 3(a)(62) of Section 15c3-1(c)(2)(vi)(F) under the Exchange Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus as of the date of this Agreement that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Offered Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i6(a)(i) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an opinion and statement 10b-5 letter of Xxxxxx Xxxxx Xxxxxxxx Xxxxxxx Xxxx & Xxxxxxx Xxxxxxxxx LLP, outside counsel for the Company, dated as of the Closing Date, in form and substance reasonably satisfactory to the effect set forth in Exhibit A heretoUnderwriters.
(d) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx Xxxxxxx Xxxx & Xxxxxxx P.CXxxxxxxxx LLP, Xxxxxxxx Islands outside counsel for the CompanySelling Stockholders, dated the Closing Date, in form and substance reasonably satisfactory to the effect set forth in Exhibit B heretoUnderwriters.
(e) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx Xxxxxxxx & Xxxxxx LLP, special U.S. maritime environmental counsel and Liberian counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit C hereto.
(f) The Underwriters shall have received on the Closing Date an opinion and statement of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel for the Underwriters, dated the Closing Date, with respect in form and substance satisfactory to such matters as may be requested by the Underwriters.
(gf) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter letters each dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Deloitte & Touche LLP, independent public accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters underwriters, from KPMG, LLP, independent public accountants, with respect to the financial statements and certain financial information of the Company and SourceHOV Holdings, Inc., and from Pricewaterhouse Coopers LLP, independent public accountants, with respect to the financial statements and certain financial information of Novitex Holdings, Inc., contained in the Registration Statement, the Time of Sale Prospectus and the Prospectus; provided that the letter letters delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
(h) The Offered Shares shall have been approved for listing on the NYSE, and satisfactory evidence thereof shall have been provided to you.
(i) FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(jg) The “lock-up” agreements, each substantially in the form of Exhibit D A hereto, between you you, each of the Selling Stockholders and Genco certain other stockholders, and each officer the officers and director directors of the Company relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date. .
(h) The Underwriters shall have received, on each of the date hereof and the Closing Date, a certificate of the Chief Financial Officer of the Company, in form and substance reasonably satisfactory to the Underwriters.
(i) The several obligations of the Underwriters to purchase Optional Additional Shares hereunder are subject to the delivery to you on the applicable Option Closing Date of the following:
(i) a certificate, dated the Option Closing Date and signed by an executive officer of the Company, confirming that the certificate delivered on the Closing Date pursuant to Section 6(b) hereof remains true and correct as of such Option Closing Date;
(ii) an opinion of Xxxxxxx Xxxx & Xxxxxxxxx LLP, outside counsel for the Company, dated the Option Closing Date, relating to the Additional Shares to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof;
(iii) an opinion of Xxxxxxx Xxxx & Xxxxxxxxx LLP, outside counsel for the Selling Stockholders, dated the Option Closing Date, relating to the Additional Shares to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(d) hereof;
(iv) an opinion of Xxxxxxxx & Xxxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Additional Shares to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(e) hereof;
(v) letters dated the Option Closing Date, in form and substance satisfactory to the Underwriters, from KPMG, LLP, independent public accountants, and Pricewaterhouse Coopers LLP, independent public accountants, substantially in the same form and substance as the letters furnished to the Underwriters pursuant to Section 6(f) hereof; provided that the letters delivered on the Option Closing Date shall use a “cut-off date” not earlier than three business days prior to such Option Closing Date;
(vi) a certificate, dated the Option Closing Date and signed by the Chief Financial Officer of the Company, to the same effect as the opinion required by Section 6(c) hereof and
(vii) such other documents as you may reasonably request with respect to the good standing of the Company, the due authorization and issuance of the Optional Additional Shares to be sold on such Option Closing Date and other matters related to the issuance of such Optional Additional Shares.
Appears in 1 contract
Conditions to the Underwriters’ Obligations. The obligations of the Company to sell the Shares to the Underwriters and the several obligations of the Underwriters to purchase and pay for the Shares on the Closing Date and each Option Closing Date are subject to the condition that the Registration Statement shall have become effective not later than [—] (New York City time) on the date hereof. The several obligations of the Underwriters are subject to the following further conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined for purposes of Section 15c3-1(c)(2)(vi)(F) under the Exchange Act; and
(ii) Date there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus as of and the date of this Agreement Prospectus that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Offered Shares on the terms and in the manner contemplated in the Time of Sale Prospectus and the Prospectus.
(b) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i5(a) above and to the effect that (i) no stop order suspending the effectiveness of the Registration Statement is in effect as of the Closing Date, and no proceedings for such purpose are pending before or, to such executive officer’s knowledge, threatened by the Commission; (ii) the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date Date; and that (iii) the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an opinion and statement of Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx Xxxxxx LLP, outside counsel for the Company, dated the Closing Date, to in substantially the effect form set forth out in Exhibit A heretoSchedule IV hereof. The Underwriters shall also have received on the Closing Date an opinion of X.X. X’Xxxxxxx, Solicitors, Ireland counsel for the Company, dated the Closing Date, in the form mutually agreed upon between such Ireland counsel and Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters.
(d) The Underwriters shall have received on the Closing Date an opinion and negative assurance letter of Xxxxxx Xxxxx Xxxx & Xxxxxxx P.C, Xxxxxxxx Islands counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit B hereto.
(e) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxx LLP, special U.S. maritime environmental counsel and Liberian counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit C hereto.
(f) The Underwriters shall have received on the Closing Date an opinion and statement of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel for the Underwriters, dated the Closing Date, with in form and substance satisfactory to the Underwriters. With respect to such matters paragraph 26 of Schedule IV hereof and Section 5(d) above, Xxxxxx & Xxxxxx LLP and Xxxxx Xxxx & Xxxxxxxx LLP may state that their opinions and beliefs are based upon their participation in the preparation of the Registration Statement, the Time of Sale Prospectus and the Prospectus and any amendments or supplements thereto and review and discussion of the contents thereof, but are without independent check or verification, except as may specified. The opinions of Xxxxxx & Xxxxxx LLP and X.X. X’Xxxxxxx, Solicitors described in Section 5(c) above shall be requested by rendered to the UnderwritersUnderwriters at the request of the Company and shall so state therein.
(ge) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Deloitte Ernst & Touche Young LLP, independent public accountants, 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, the Time of Sale Prospectus and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
(h) The Offered Shares shall have been approved for listing on the NYSE, and satisfactory evidence thereof shall have been provided to you.
(i) FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(jf) The “lock-up” agreements, each substantially in the form of Exhibit D A hereto, between you and Genco the shareholders, officers and each officer and director directors of the Company relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date. The several obligations of the Underwriters to purchase Optional Additional Shares hereunder are subject to the delivery to you on the applicable Option Closing Date of such documents as you may reasonably request request, including without limitation, with respect to the good standing of the Company, the due authorization and issuance of the Optional Additional Shares to be sold on such Option Closing Date and other matters related to the issuance of such Optional Additional Shares.
Appears in 1 contract
Conditions to the Underwriters’ Obligations. The obligations of the Selling Shareholder to sell the Shares to the Underwriters and the several obligations of the Underwriters to purchase and pay for the Shares on the Closing Date are subject to the condition that the Registration Statement shall have become effective prior to the date hereof. The several obligations of the Underwriters are subject to the following further conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined for purposes of Section 15c3-1(c)(2)(vi)(FRule 436(g)(2) under the Exchange Securities Act; and
(ii) there shall not have occurred any change, or any development involving reasonably likely to result in a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus (excluding amendments or supplements thereto) as of the date of this Agreement that, in your judgmentthe judgment of the Underwriters, is material and adverse and that makes it, in your judgmentthe judgment of the Underwriters, impracticable to market the Offered Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Underwriters shall have received on the Closing Date (1) a certificate, dated the Closing Date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i6(a)(i) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date and (2) a certificate of the Selling Shareholder, dated the Closing Date and signed by an officer or an authorized representative of the Selling Shareholder to the effect that the representations and warranties of the Selling Shareholder contained in this Agreement are true and correct as of the Closing Date and that the Selling Shareholder has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officer officers signing and delivering such certificate certificates may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an opinion and statement opinions of Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP(1) Xxxx X. Xxxxx, outside Esq. (“General Counsel”), general counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit A Annex A-1 hereto, and (2) Ropes & Xxxx LLP (“Company Counsel”), counsel for the Company, to the effect set forth in Annex A-2 hereto, each dated the Closing Date.
(d) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxx P.CXxxxxxxx LLP and/or another firm satisfactory to the Underwriters (such firm or firms, Xxxxxxxx Islands the “Selling Shareholder Counsel”), counsel for the CompanySelling Shareholder, dated the Closing Date, to the effect set forth in Exhibit Annex B hereto.
(e) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx Skadden, Arps, Slate, Xxxxxxx & Xxxxxx LLP, special U.S. maritime environmental counsel and Liberian counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit C hereto.
(f) The Underwriters shall have received on the Closing Date an opinion and statement of Xxxxxx, Xxxxx & Xxxxxxx Xxxx LLP, counsel for the Underwriters, dated the Closing Date, with respect to covering such matters as may be requested by the Underwriters. The opinions of General Counsel, Company Counsel and Selling Shareholder Counsel described in Section 6(c) and 6(d) above shall be rendered to the Underwriters at the request of the Company or the Selling Shareholder, as the case may be, and shall so state therein.
(gf) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Deloitte & Touche PricewaterhouseCoopers LLP, independent public accountants, 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, the Time of Sale Prospectus and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
(h) The Offered Shares shall have been approved for listing on the NYSE, and satisfactory evidence thereof shall have been provided to you.
(i) FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(jg) The “lock-up” agreements, each substantially agreement executed by the Selling Shareholder in the form of Exhibit D hereto, between you and Genco and each officer and director of the Company A hereto relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you the Underwriters on or before the date hereof, shall be in full force and effect on the Closing Date.
(h) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by the Chief Financial Officer of the Company, to the effect set forth in Annex C hereto. The several obligations of the Underwriters to purchase Optional Additional Shares hereunder are subject to the delivery to you the Underwriters on the applicable Option Closing Date of such documents as you the Underwriters may reasonably request with respect to the good standing of the Company, the due authorization and issuance of the Optional Additional Shares to be sold on such Option Closing Date and other matters related to the issuance of such Optional Additional Shares.
Appears in 1 contract
Samples: Underwriting Agreement (Atlas Air Worldwide Holdings Inc)
Conditions to the Underwriters’ Obligations. The obligations of the Company to sell the Shares to the Underwriters and the several obligations of the Underwriters to purchase and pay for the Shares on the Closing Date are subject to the condition that the Registration Statement shall have become effective not later than 4:00 p.m. (New York City time) on the date hereof. The several obligations of the Underwriters are subject to the following further conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined for purposes of Section 15c3-1(c)(2)(vi)(F) under the Exchange Act; and
(ii) Date there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus as of the date of this Agreement that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Offered Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i5(a) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an opinion and statement negative assurance letter of Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP, outside counsel for the Company, dated the Closing Date, in form and substance reasonably satisfactory to the effect set forth in Exhibit A heretoRepresentatives.
(d) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx Xxxxxxx Xxxxx & Xxxxxxx P.CBear LLP, Xxxxxxxx Islands outside intellectual property counsel for the Company, dated the Closing Date, in form and substance reasonably satisfactory to the effect set forth in Exhibit B heretoRepresentatives.
(e) The Underwriters shall have received on the Closing Date an opinion and negative assurance letter of Xxxxxx & Xxxxxx LLP, special U.S. maritime environmental counsel and Liberian counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit C hereto.
(f) The Underwriters shall have received on the Closing Date an opinion and statement of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel for the Underwriters, dated the Closing Date, with in form and substance reasonably satisfactory to the Representatives. With respect to such matters the negative assurance letters to be delivered pursuant to Sections 5(c) and 5(e) above, Xxxxxx & Xxxxxxx LLP and Xxxxxx LLP may state that their opinions and beliefs are based upon their participation in the preparation of the Registration Statement, the Time of Sale Prospectus and the Prospectus and any amendments or supplements thereto and review and discussion of the contents thereof, but are without independent check or verification, except as may specified. The opinion and negative assurance letter of Xxxxxx & Xxxxxxx LLP described in Section 5(c) above shall be requested by rendered to the UnderwritersUnderwriters at the request of the Company and shall so state therein.
(gf) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Deloitte Ernst & Touche Young LLP, independent public accountants, 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, the Time of Sale Prospectus and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
(h) The Offered Shares shall have been approved for listing on the NYSE, and satisfactory evidence thereof shall have been provided to you.
(i) FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(jg) The “lock-up” agreements, each substantially in the form of Exhibit D A hereto, between you and Genco certain shareholders, officers and each officer and director directors of the Company relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date. .
(h) The several obligations Shares shall have been approved for listing on the Nasdaq Global Market.
(i) The Underwriters shall have received, on each of the Underwriters date hereof and the Closing Date, a certificate of the accuracy of certain financial information included in the Time of Sale Prospectus and the Prospectus, in form and substance reasonably satisfactory to purchase Optional Shares hereunder are subject to you, signed by the delivery to you on the applicable Option Closing Date of such documents as you may reasonably request with respect to the good standing chief financial officer of the Company, the due authorization and issuance of the Optional Shares to be sold on such Option Closing Date and other matters related to the issuance of such Optional Shares.
Appears in 1 contract
Samples: Underwriting Agreement (Zentalis Pharmaceuticals, Inc.)
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters are subject to the following further conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any public notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities indebtedness of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined for purposes of Section 15c3-1(c)(2)(vi)(F3(a)(62) under of the Exchange Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus as of the date of this Agreement that, in your the Underwriters’ judgment, is material and adverse and that makes it, in your the Underwriters’ judgment, impracticable to market the Offered Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Underwriters shall have received on the Closing Date (i) a certificate, dated the Closing Date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i6(a)(i) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date and (ii) a certificate of the Selling Shareholder to the effect that the representations and warranties of the Selling Shareholder in this Agreement are true and correct with the same force and effect as though expressly made at and as of the Closing Date and the Selling Shareholder has complied with all agreements and all conditions on its part to be performed under this Agreement at or prior to the Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an opinion and statement negative assurance letter of Xxxxxx Xxxxx Debevoise & Xxxxxxxx & Xxxxxxx LLP, outside counsel for the CompanyCompany and the Selling Shareholder, dated the Closing Date, to in the effect set forth in forms attached hereto as Exhibit A heretoX-0, Xxxxxxx X-0 and Exhibit A-3, respectively.
(d) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxxx P.CXxxxx Xxxxx, Xxxxxxxx Islands counsel for General Counsel of the Company, dated the Closing Date, to in the effect set forth in form attached hereto as Exhibit B hereto.B.
(e) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxx LLP, special U.S. maritime environmental counsel and Liberian counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit C hereto.
(f) The Underwriters shall have received on the Closing Date an opinion and statement of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel for the Underwriters, dated the Closing Date, with respect to such matters as the Underwriters may be requested by the Underwritersreasonably request.
(gf) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Deloitte Ernst & Touche Young LLP, independent public accountants, 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, the Time of Sale Prospectus and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
(h) The Offered Shares shall have been approved for listing on the NYSE, and satisfactory evidence thereof shall have been provided to you.
(i) FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(jg) The “lock-up” agreements, each substantially in the form of Exhibit D C hereto, between you the Underwriters and Genco the Selling Shareholder, the executive officers and each officer and director directors of the Company listed on Schedule III hereto, relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you the Underwriters on or before the date hereof, shall be in full force and effect on the Closing Date. .
(h) The several obligations of Underwriters shall have received on the date hereof, and on the Closing Date, a certificate addressed to the Underwriters to purchase Optional Shares hereunder are subject to the delivery to you on the applicable Option Closing Date and as of such documents as you may reasonably request with respect to the good standing dates, of Xxxxxx X. Xxxxxxxxxx, Executive Vice President, Chief Financial Officer and Chief Administrative Officer of the Company, covering certain financial and accounting information in the due authorization and issuance Time of Sale Prospectus, substantially in the form attached hereto as Exhibit D.
(i) No order suspending the effectiveness of the Optional Shares Registration Statement shall be in effect, and no proceeding for such purpose pursuant to Section 8A under the Securities Act shall be pending before or, to the Company’s knowledge after due inquiry, threatened by the Commission; the Prospectus and each free writing prospectus required to be sold on such Option filed by the Company by Rule 433 under the Securities Act shall have been timely filed with the Commission under the Securities Act (in the case of a free writing prospectus to the extent required by Rule 433 under the Securities Act) and in accordance with Section 6(c) hereof; and all requests by the Commission for additional information shall have been complied with to the Underwriters’ reasonable satisfaction.
(j) The representations and warranties of each of the Company and Selling Shareholder contained in this Agreement are true and correct as of the Closing Date and other matters related that each of the Company and Selling Shareholder has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the issuance of such Optional SharesClosing Date.
Appears in 1 contract
Samples: Underwriting Agreement (Booz Allen Hamilton Holding Corp)
Conditions to the Underwriters’ Obligations. The obligation of the Company to sell the Securities to the Underwriters and the several obligations of the Underwriters to purchase and pay for the Securities are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible changedowngrading, in the rating accorded any of the Company’s securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined for purposes of Section 15c3-1(c)(2)(vi)(FRule 436(g)(2) under the Exchange Securities Act; and;
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Registration Statement, the Prospectus as of or the date of this Agreement General Disclosure Package that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Offered Shares Securities on the terms and in the manner contemplated in the Time Prospectus; and
(iii) the Registration Statement shall have become effective under the Securities Act and no stop order suspending the effectiveness of Sale Prospectusthe Registration Statement shall have been issued under the Securities Act and no proceedings therefor shall have been initiated or threatened by the Commission.
(b) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(iclause (a)(i) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and that the Company has complied in all material respects with all of the agreements and satisfied in all material respects all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The Date (the officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened).
(c) The Underwriters shall have received on the Closing Date an opinion and statement of Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP, outside special counsel for the Company, shall have furnished to you their written opinion dated the Closing Date, in form and substance satisfactory to the effect set forth in Exhibit A hereto.
(d) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxxx P.C, Xxxxxxxx Islands counsel for the Company, dated the Closing Dateyou, to the effect set forth that:
(i) The Company has been duly incorporated under the General Corporation Law of the State of Delaware, with corporate power and authority to own, lease and operate its properties and to conduct its business as described in Exhibit B heretothe Registration Statement, the General Disclosure Package and the Prospectus. Based on certificates from public officials, such firm shall confirm that the Company is validly existing and in good standing under the laws of the State of Delaware.
(eii) The Underwriters shall execution, delivery and performance of this Agreement have received on the Closing Date an opinion been duly authorized by all necessary corporate action of Xxxxxx & Xxxxxx LLP, special U.S. maritime environmental counsel and Liberian counsel for the Company, dated and this Agreement has been duly executed and delivered by the Closing Date, to the effect set forth in Exhibit C heretoCompany.
(fiii) The Underwriters shall Indenture (a) has been qualified under the Trust Indenture Act of 1939, as amended, (b) has been duly authorized by all necessary corporate action of the Company and duly executed and delivered by the Company and (c) is the legally valid and binding agreement of the Company, enforceable against the Company in accordance with its terms.
(iv) The Securities have received been duly authorized by all necessary corporate action of the Company, have been duly executed by the Company, and when duly issued and authenticated in accordance with the terms of the Indenture and delivered to and paid for by you in accordance with the terms of this Agreement, the Securities will be legally valid and binding obligations of the Company, enforceable against the Company in accordance with their terms.
(v) The Registration Statement has become effective under the Securities Act. To the best of such firm’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act and no proceedings therefor have been initiated by the Commission. The preliminary prospectus has been filed in accordance with Rule 424(b) under the Securities Act (without reference to Rule 424(b)(8)), the Prospectus has been filed in accordance with Rule 424(b) under the Securities Act (without reference to Rule 424(b)(8) and Rule 430B under the Securities Act, and each Issuer Free Writing Prospectus has been filed in accordance with Rule 433(d).
(vi) The Registration Statement (including the information deemed to be a part thereof pursuant to Rule 430B), at August 13, 2007, and the Prospectus, as of the date of the Prospectus Supplement, appeared on their face to be appropriately responsive in all material respects with the Closing Date an requirements for registration statements on Form S-3 under the Securities Act and the Securities Act Regulations; it being understood, however, that such firm need express no opinion and statement of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel for the Underwriters, dated the Closing Date, with respect to Regulation S-T or the financial statements, schedules or other financial data included in, incorporated by reference in or omitted from the Registration Statement or the Prospectus or with respect to the Statement of Eligibility of the Trustee on Form T-1 (the “Form T-1”). For purposes of this paragraph, such matters as firm may be requested by have assumed that the Underwritersstatements made in the Registration Statement and the Prospectus, are correct and complete.
(gvii) The Underwriters shall have received, Securities and the Indenture conform in all material respects to the descriptions thereof in the General Disclosure Package and the Prospectus under the captions “Description of the Notes” and “Description of Debt Securities,” in each case insofar as such statements are summaries of legal matters.
(viii) The issue and sale of the Securities being delivered on each of the date hereof by the Company and the Closing Date, a letter dated compliance by the Company with the provisions of this Agreement and the Indenture on the date hereof do not:
(1) violate the Company’s Governing Documents; or
(2) result in the breach of or a default under any of the indentures relating to the Company’s 4.125% Notes due 2008, 5.80% Notes due 2012, 6.50% Notes due 2011, 7.25% Debentures due 2031, 7.50% Notes due 2009, 4.950% Notes due 2010, 5.625% Notes due 2014, 7.00% Senior Notes due 2007, 4.45% Senior Notes due 2008, 6.50% Notes due 2008, 7.45% Senior Debentures due 2027 or Floating Rate Notes due 2009 or the Closing DateCredit Agreement dated as of June 1, 2005 among the Company and Canada Safeway Limited, as borrowers, and a consortium of banks led by Banc of America Securities LLC and X.X. Xxxxxx Securities Inc., as joint lead arrangers, as amended; or
(3) violate any federal, New York or California statute, rule or regulation applicable to the Company; or
(4) require any consents, approvals or authorizations to be obtained by the Company from, or any, registrations, declarations or filings to be made by the Company with, any governmental authority under any federal, New York or California statute, rule or regulation applicable to the Company that have not been obtained or made.
(ix) Each of the Incorporated Documents, as of its respective filing or effective date, appeared on its face to be appropriately responsive in all material respects with the applicable requirements for reports on Forms 10-K, 10-Q and 8-K and proxy statements under Regulation 14A, as the case may be, in form under the Exchange Act, and substance satisfactory the rules and regulations of the Commission thereunder, and for Registration Statements on Form 8-A under the Exchange Act and the rules and regulations of the Commission thereunder applicable to the Underwritersportion incorporated; it being understood, however, that such firm need express no opinion with respect to Regulation S-T or the financial statements, schedules or other financial data included in, incorporated by reference in, or omitted from Deloitte & Touche LLPsuch reports, independent public accountants, containing proxy statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters registration statements or with respect to the financial Form T-1. In passing upon the compliance as to form of the Incorporated Documents, such firm may assume that the statements made therein are correct and certain financial information contained complete. “Incorporated Documents” means the reports and proxy and registration statements filed by the Company with the Commission and incorporated or deemed to be incorporated by reference in the Registration Statement, the Time of Sale Prospectus and Statement or the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
(h) The Offered Shares shall have been approved for listing on the NYSE, and satisfactory evidence thereof shall have been provided to you.
(i) FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(j) The “lock-up” agreements, each substantially in the form of Exhibit D hereto, between you and Genco and each officer and director of the Company relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date. The several obligations of the Underwriters to purchase Optional Shares hereunder are subject to the delivery to you on the applicable Option Closing Date of such documents as you may reasonably request with respect to the good standing of the Company, the due authorization and issuance of the Optional Shares to be sold on such Option Closing Date and other matters related to the issuance of such Optional Shares.
Appears in 1 contract
Samples: Underwriting Agreement (Safeway Inc)
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) , there shall not have occurred any downgradingbeen, nor shall any notice have been since the date hereof or since the respective dates as of which information is given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded Registration Statement, the Time of Sale Prospectus or the Prospectus, any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined for purposes of Section 15c3-1(c)(2)(vi)(F) under the Exchange Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or operations business prospects of the Company and its subsidiariessubsidiaries considered as one enterprise, taken as a whole, from that set forth whether or not arising in the Time ordinary course of Sale Prospectus as of the date of this Agreement that, in your judgment, is material and adverse and business that makes it, in your judgmentthe judgment of the Managers, impracticable to market the Offered Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Company on behalf of the Company, to the effect set forth in Section 5(a)(i) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an opinion and statement of Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP, outside United States counsel for the Company, dated the Closing Date, to substantially in the effect set forth in form attached hereto as Exhibit A hereto.B.
(d) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxxx P.CA&L Goodbody, Xxxxxxxx Islands Irish counsel for the Company, dated the Closing Date, to substantially in the effect set forth in form attached hereto as Exhibit B hereto.C.
(e) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx (i) Xxxxxxx & Xxxxxx LLPPartner, outside special U.S. maritime environmental counsel and Liberian intellectual property counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit C hereto.
(f) The Underwriters shall have received on the Closing Date an opinion and statement of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel for the Underwriters, dated the Closing Date, with respect to such matters as may be requested by the Underwriters.
(g) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Deloitte & Touche LLP, independent public accountants, 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, the Time of Sale Prospectus and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
(h) The Offered Shares shall have been approved for listing on the NYSE, and satisfactory evidence thereof shall have been provided to you.
(i) FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(j) The “lock-up” agreements, each substantially in the form of attached hereto as Exhibit D heretoD-1, between you and Genco and each officer and director of the Company relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date. The several obligations of the Underwriters to purchase Optional Shares hereunder are subject to the delivery to you on the applicable Option Closing Date of such documents as you may reasonably request with respect to the good standing of the Company, the due authorization and issuance of the Optional Shares to be sold on such Option Closing Date and other matters related to the issuance of such Optional Shares.and
Appears in 1 contract
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined for purposes of Section 15c3-1(c)(2)(vi)(F) under the Exchange Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiariesFund, taken as a whole, the Adviser or the Sub-Adviser from that set forth in the Time of Sale Prospectus as of the date of this Agreement that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Offered Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of each of the CompanyFund, to the effect set forth in Section 5(a)(i) above Adviser and the Sub-Adviser, to the effect that the representations and warranties of the Company Fund, the Adviser and the Sub-Adviser, respectively, contained in this Agreement are true and correct as of the Closing Date and that each of the Company Fund, the Adviser and the Sub-Adviser, respectively, has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The Each officer signing and delivering such a certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) Each of the Fund, the Adviser and the Sub-Adviser shall have performed all of their respective obligations to be performed hereunder on or prior to the Closing Date.
(d) The Underwriters shall have received on the Closing Date an opinion and statement of Xxxxxx Xxxxx Xxxxxxxx Skadden, Arps, Slate, Xxxxxxx & Xxxxxxx Xxxx LLP, outside special counsel for the CompanyFund, dated the Closing Date, to the effect set forth in Exhibit A hereto.
(de) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxxx P.C, Xxxxxxxx Islands the general counsel for of the CompanyAdviser, dated the Closing Date, to the effect set forth in Exhibit B hereto.
(ef) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxx Dechert LLP, special U.S. maritime environmental counsel and Liberian counsel for the CompanySub-Adviser, dated the Closing Date, to the effect set forth in Exhibit C hereto.
(fg) The Underwriters shall have received on the Closing Date an the favorable opinion and statement of Xxxxxx, Xxxxx Xxxxxxx Xxxxxxx & Xxxxxxx Xxxxxxxx LLP, counsel for the Underwriters, dated the Closing Date, with respect to and covering such matters as may the Underwriters shall reasonably request. The opinions of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, the general counsel of the Adviser and Dechert LLP described in Sections 7(d), 7(e) and 7(f) above, respectively, shall be requested by rendered to the UnderwritersUnderwriters at the request of the Fund, the Adviser and the Sub-Adviser, respectively, and shall so state therein.
(gh) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Deloitte Ernst & Touche Young LLP, independent public accountants, 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, Statement and the Time of Sale Prospectus and the Prospectus; , provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
(h) The Offered Shares shall have been approved for listing on the NYSE, and satisfactory evidence thereof shall have been provided to you.
(i) FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(j) The “lock-lock up” agreements, each substantially in the form of Exhibit D hereto, between you the Underwriters and Genco and each officer and director officers of the Company relating to sales Fund and certain other dispositions of shares of Common Stock or certain other securities, the Adviser and the Sub-Adviser delivered to you the Underwriters on or before the date hereof, shall be in full force and effect on the Closing Date.
(j) All filings, applications and proceedings taken by the Fund in connection with the registration of the Shares under the Acts and the applicable Rules and Regulations shall be satisfactory in form and substance to you and counsel for the Underwriters.
(k) No action, suit, proceeding, inquiry or investigation shall have been instituted or threatened by the Commission which would adversely affect the Fund’s standing as a registered investment company under the Investment Company Act or the standing of Guggenheim or the Sub-Adviser as a registered investment adviser under the Advisers Act.
(l) The Shares shall have been duly authorized for listing on the New York Stock Exchange, subject only to official notice of issuance thereof. The several obligations of the Underwriters to purchase Optional Additional Shares hereunder are subject to the delivery to you on the applicable Option Closing Date of such documents as you may reasonably request with respect to the good standing of the CompanyFund, the Adviser and the Sub-Adviser, the due authorization and issuance of the Optional Additional Shares to be sold on such Option Closing Date and other matters related to the issuance of such Optional Additional Shares, and officers’ certificates and opinions of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, general counsel of the Adviser, Dechert LLP and Xxxxxxx Xxxxxxx & Xxxxxxxx LLP to the effect set forth above, except that such certificates and opinions shall be dated as of the applicable Option Closing Date and statements and opinions above contemplated to be given as of the Closing Date shall instead be made and given as of such Option Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (Fiduciary/Claymore MLP Opportunity Fund)
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate no order suspending the direction effectiveness of the possible changeRegistration Statement shall be in effect, in the rating accorded any of the securities of the Company and no proceeding for such purpose or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined for purposes of pursuant to Section 15c3-1(c)(2)(vi)(F) 8A under the Exchange ActSecurities Act shall be pending before or threatened by the Commission; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus as of the date of this Agreement that, in your the Representative’s judgment, is material and adverse and that makes it, in your the Representative’s judgment, impracticable to market the Offered Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Company, to the effect set forth in Section Sections 5(a)(i) and 5(a)(ii) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an opinion and statement negative assurance letter of Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP, outside counsel for the Company, dated the Closing Date, in form and substance reasonably satisfactory to the effect set forth in Exhibit A heretoUnderwriters.
(d) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxxx P.CXxxxx Xxxxxxxx LLP, Xxxxxxxx Islands intellectual property counsel for the Company, dated the Closing Date, in form and substance reasonably satisfactory to the effect set forth in Exhibit B heretoUnderwriters.
(e) The Underwriters shall have received on the Closing Date an opinion and negative assurance letter of Xxxxxx & Xxxxxx LLP, special U.S. maritime environmental counsel and Liberian counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit C hereto.
(f) The Underwriters shall have received on the Closing Date an opinion and statement of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel for the Underwriters, dated the Closing Date, with in form and substance reasonably satisfactory to the Underwriters. With respect to such matters the negative assurance letters to be delivered pursuant to Sections 5(c) and 5(e) above, Xxxxxx & Xxxxxxx LLP and Xxxxxx LLP, respectively, may state that their opinions and beliefs are based upon their participation in the preparation of the Registration Statement, the Time of Sale Prospectus and the Prospectus and any amendments or supplements thereto and review and discussion of the contents thereof, but are without independent check or verification, except as may specified. The opinions of Xxxxxx & Xxxxxxx LLP and Xxxxx Xxxxxxxx LLP described in Sections 5(c) and 5(d), respectively, shall be requested by rendered to the UnderwritersUnderwriters at the request of the Company and shall so state therein.
(gf) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Deloitte Ernst & Touche Young LLP, independent public accountants, 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, the Time of Sale Prospectus and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than two business days prior to the date hereof.
(h) The Offered Shares shall have been approved for listing on the NYSE, and satisfactory evidence thereof shall have been provided to you.
(i) FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(jg) The “lock-up” agreements, each substantially in the form of Exhibit D A hereto, between you among the Representative and Genco certain shareholders, officers and each officer and director directors of the Company relating to restrictions on sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you the Representative on or before the date hereofhereof (the “Lock-up Agreements”), shall be in full force and effect on the Closing Date. .
(h) The Underwriters shall have received, on each of the date hereof and at the Closing Date, such other documents as the Representative may reasonably request with respect to, among other things, the good standing of the Company, the due authorization and issuance of the Shares to be sold on the Closing Date and other matters related to the issuance of the Shares.
(i) The several obligations of the Underwriters to purchase Optional Additional Shares hereunder are subject to the delivery to you the Representative on the applicable Option Closing Date of the following:
(i) a certificate, dated the Option Closing Date and signed by an executive officer of the Company, confirming that the certificate delivered on the Closing Date pursuant to Section 5(b) hereof remains true and correct as of such Option Closing Date;
(ii) an opinion and negative assurance letter of Xxxxxx & Xxxxxxx LLP, outside counsel for the Company, dated the Option Closing Date, relating to the Additional Shares to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 5(c) hereof;
(iii) an opinion of Xxxxx Xxxxxxxx LLP, intellectual property counsel for the Company, dated the Option Closing Date, relating to the Additional Shares to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 5(d) hereof;
(iv) an opinion and negative assurance letter of Xxxxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Additional Shares to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 5(e) hereof;
(v) a letter dated the Option Closing Date, in form and substance satisfactory to the Underwriters, from Ernst & Young LLP, independent public accountants, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 5(f) hereof; provided that the letter delivered on the Option Closing Date shall use a “cut-off date” not earlier than two business days prior to such Option Closing Date; and
(vii) such other documents as you the Representative may reasonably request with respect to the good standing of the Company, the due authorization and issuance of the Optional Additional Shares to be sold on such Option Closing Date and other matters related to the issuance of such Optional Additional Shares.
Appears in 1 contract
Samples: Underwriting Agreement (Cerevel Therapeutics Holdings, Inc.)
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date and any Option Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given to the Company of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined for purposes of Section 15c3-1(c)(2)(vi)(F3(A)(62) under of the Exchange Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business business, prospects or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus as of the date of this Agreement that, in your judgment, is material and adverse or is reasonably likely to be material and adverse, and that makes it, in your judgment, impracticable to market the Offered Shares Securities on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i) above and to the effect that (i) the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and (ii) that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an opinion and statement negative assurance letter of Xxxxxx Xxxxx Xxxxxxxx Xxxxxxxxx & Xxxxxxx LLP, outside special counsel for the Company, dated the Closing Date, in the form previously agreed, which shall be rendered to the effect set forth in Exhibit A heretoUnderwriters at the request of the Company and shall so state therein.
(d) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx & Hunton Xxxxxxx P.CXxxxx LLP, Xxxxxxxx Islands Virginia counsel for the Company, dated the Closing Date, in the form previously agreed, which shall be rendered to the effect set forth in Exhibit B heretoUnderwriters at the request of the Company and shall so state therein.
(e) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxx LLP, special U.S. maritime environmental intellectual property counsel and Liberian counsel for to the Company, dated the Closing Date, to in the effect set forth in Exhibit C heretoform previously agreed.
(f) The Underwriters shall have received on the Closing Date an opinion and statement or opinions of Xxxxxx, Xxxxx Ropes & Xxxxxxx Xxxx LLP, counsel for the Underwriters, dated the Closing Date, with respect in form and substance reasonably satisfactory to the Managers, and such matters counsel shall have received such papers and information as they may be requested by the Underwritersreasonably request to enable them to pass upon such matters.
(g) The Underwriters shall have received on the Closing Date an opinion or opinions of Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, dated the Closing Date, in form and substance reasonably satisfactory to the Managers, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters.
(h) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Deloitte Ernst & Touche Young LLP, independent public accountants, 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, the Time of Sale Prospectus and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
(h) The Offered Shares shall have been approved for listing on the NYSE, and satisfactory evidence thereof shall have been provided to you.
(i) FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(j) The “lock-up” agreements, each substantially in the form of Exhibit D Annex B hereto, between you and Genco and each executive officer and director of the Company relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date. .
(j) The several obligations of the Underwriters to purchase Optional Shares Securities hereunder are subject to the delivery to you on the applicable Option Closing Date of the following:
(i) a certificate, dated the Option Closing Date and signed by an executive officer of the Company, confirming that the certificate delivered on the Closing Date pursuant to Section 5(b) hereof remains true and correct as of such Option Closing Date;
(ii) an opinion and negative assurance letter of Xxxxxxxxx & Xxxxxxx LLP, special counsel for the Company, dated the Option Closing Date, relating to the Optional Securities to be purchased on such Option Closing Date and, except as otherwise agreed by you, to the same effect as the opinion required by Section 5(c) hereof;
(iii) an opinion of Hunton Xxxxxxx Xxxxx LLP, Virginia counsel for the Company, dated the Option Closing Date, relating to the Optional Securities to be purchased on such Option Closing Date and, except as otherwise agreed by you, to the same effect as the opinion required by Section 5(d) hereof;
(iv) an opinion of Xxxxxx LLP, intellectual property counsel to the Company, dated the Option Closing Date and otherwise to the same effect as the opinion required by Section 5(e) hereof;
(v) an opinion or opinions of Ropes & Xxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Optional Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 5(f) hereof;
(vi) an opinion or opinions of Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Optional Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 5(g) hereof;
(vii) a letter dated the Option Closing Date, in form and substance satisfactory to the Underwriters, from Ernst & Young, LLP, independent public accountants, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 5(h) hereof; provided that the letter delivered on the Option Closing Date shall use a “cut-off date” not earlier than three business days prior to such Option Closing Date; and
(viii) such other documents as you may reasonably request with respect to the good standing of the Company, the due authorization and issuance of the Optional Shares Securities to be sold on such Option Closing Date and other matters related to the issuance of such Optional SharesSecurities.
Appears in 1 contract
Samples: Underwriting Agreement (INSMED Inc)
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters Underwriter are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined for purposes of Section 15c3-1(c)(2)(vi)(FRule 436(g)(2) under the Exchange Securities Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus as of the date of this Agreement (excluding any amendments or supplements thereto) that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Offered Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Underwriters Underwriter shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters Underwriter shall have received on the Closing Date an (i) the favorable opinion and statement of Xxxxxx Xxxxx Xxxxxxxx Skadden, Arps, Slate, Mxxxxxx & Xxxxxxx Fxxx LLP, outside counsel for the Company, dated the Closing Date, (ii) the favorable opinion of Sxxxxx X. Xxxxxxxx, Esq., General Counsel of the Company, dated the Closing Date, and (iii) the favorable opinion of Vxxxxx Xxxxx, in-house intellectual property counsel for the Company, dated the Closing Date, in each case, in form and substance satisfactory to the effect set forth Underwriter. The opinions of counsel for the Company referred to in Exhibit A heretothis Section 5(c) shall be rendered to the Underwriter at the request of the Company and shall so state therein.
(d) The Underwriters Underwriter shall have received on the Closing Date an opinion of Xxxxxx Ropes & Xxxxxxx P.CGxxx LLP, Xxxxxxxx Islands counsel for the CompanyUnderwriter, dated the Closing Date, to the effect set forth in Exhibit B hereto.
(e) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxx LLP, special U.S. maritime environmental counsel and Liberian counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit C hereto.
(f) The Underwriters shall have received on the Closing Date an opinion and statement of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel for the Underwriters, dated the Closing Date, with respect to such matters as may be requested by the Underwriters.
(g) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the UnderwritersUnderwriter.
(e) The Underwriter shall have received on the Closing Date a letter dated the date of the Closing Date, in form and substance satisfactory to the Underwriter, from Deloitte & Touche PricewaterhouseCoopers LLP, independent public accountants, 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, the Time of Sale Prospectus and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
(h) The Offered Shares shall have been approved for listing on the NYSE, and satisfactory evidence thereof shall have been provided to you.
(i) FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(jf) The “lock-up” agreements, each substantially in the form of Exhibit D A hereto, between you and Genco certain executive officers and each officer and director directors of the Company relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date. The several obligations of the Underwriters to purchase Optional Shares hereunder are subject to the delivery to you on the applicable Option Closing Date of such documents as you may reasonably request with respect to the good standing of the Company, the due authorization and issuance of the Optional Shares to be sold on such Option Closing Date and other matters related to the issuance of such Optional Shares.
Appears in 1 contract
Samples: Underwriting Agreement (Regeneron Pharmaceuticals Inc)
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters Company to sell the Shares to the Underwriter and the obligation of the Underwriter to purchase and pay for the Shares on the Closing Date are subject to the condition that the Registration Statement shall be effective on the Closing Date and no stop order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for that purpose shall be pending before or threatened by the Commission. The obligation of the Underwriter is subject to the following further conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible changewith negative implications, in the rating accorded any of the Company's securities of the Company or any of its subsidiaries by any “"nationally recognized statistical rating organization,” " as such term is defined for purposes of Section 15c3-1(c)(2)(vi)(FRule 436(g)(2) under the Exchange Securities Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time Prospectus (exclusive of Sale Prospectus as of any amendments or supplements thereto subsequent to the date of this Agreement Agreement) that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Offered Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Underwriters Underwriter shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Company, to the effect set forth in the first paragraph of this Section 5(a)(i) above 5, in Section 5(a), and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters Underwriter shall have received on the Closing Date an opinion and statement of Xxxxxx Xxxxx Xxxxxxxx Skadden, Arps, Slate, Xxxxxxx & Xxxxxxx Xxxx LLP, outside counsel for the Company, dated the Closing Date, to the effect that:
(i) the Company has been duly incorporated and is subsisting and in good standing under the laws of the State of Delaware;
(ii) the Company has the corporate power and authority to conduct its business and own its properties, in each case as described in the Prospectus;
(iii) the authorized capital stock of the Company conforms in all material respects as to legal matters to the description thereof set forth in Exhibit A hereto.
(d) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxxx P.C, Xxxxxxxx Islands counsel for the Company's Registration Statements on Form 8-B, dated May 22, 1969, Form 8-A, dated September 21, 1987, as amended by Amendments on Form 8, dated September 18, 1990 and February 19, 1991 and Form 8-A dated October 10, 1997, taken together with the Closing Datestatements in the Prospectus under "Description of Capital Stock"; all such statements taken together have been reviewed by such counsel and, to the effect set forth extent they constitute a summary of legal matters or documents referred to therein, they fairly present in Exhibit B hereto.
(e) The Underwriters shall have received on all material respects the Closing Date an opinion of Xxxxxx & Xxxxxx LLP, special U.S. maritime environmental counsel and Liberian counsel information called for the Company, dated the Closing Date, to the effect set forth in Exhibit C hereto.
(f) The Underwriters shall have received on the Closing Date an opinion and statement of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel for the Underwriters, dated the Closing Date, with respect to such legal matters or documents;
(iv) the Shares have been duly authorized and, when issued and delivered to the Underwriter in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the sale of such Shares will not be subject to any preemptive or similar rights of any stockholder of the Company arising under the Certificate of Incorporation, the By- Laws, Applicable Laws or any agreement filed as may be requested an exhibit to any of the Incorporated Documents;
(v) this Agreement has been duly authorized, executed and delivered by the Underwriters.Company;
(gvi) The Underwriters shall have received, on each no Governmental Approval is required for the registration of the Shares by the Company or the consummation by the Company of the transactions contemplated by this Agreement, each in accordance with the terms of this Agreement, except such as have been made or obtained and except those which are not required to be obtained, made or taken prior to the date hereof hereof;
(vii) the Company is not required to be registered or regulated as an "investment company" as such term is defined in the Investment Company Act of 1940, as amended;
(viii) the statements in the Prospectus in the sections entitled "Plan of Distribution" and "Underwriter", to the extent that they relate to this Agreement, have been reviewed by such counsel and fairly summarize the provisions described in all material respects;
(a) the Registration Statement and the Closing DateProspectus, a letter dated in each case excluding the date hereof or the Closing Datedocuments incorporated by reference therein, as of their respective effective or issue date, complied as to form in all material respects with the case may be, in form and substance satisfactory to the Underwriters, from Deloitte & Touche LLP, independent public accountants, containing statements and information requirements of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to Securities Act and (b) the financial statements and certain financial information contained in documents incorporated by reference into the Registration Statement, as of their respective dates of filing with the Time Commission, complied as to form in all material respects with the requirements of Sale Prospectus the Exchange Act (excluding in the case of both clause(a) and (b) the financial statements, financial statement schedules and other financial or statistical data included in the Registration Statement and the Prospectus, in each case including the documents incorporated by reference therein); provided and
(x) such counsel shall state that no facts have come to their attention that have led them to believe that (except for the financial statements, financial statement schedules and other financial or statistical data included or incorporated by reference in the Registration Statement or excluded therefrom or the exhibits thereto, as to which such counsel need not express a belief) the Registration Statement, at the time the Registration Statement became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the Prospectus, as of its date hereof.
(h) The Offered Shares shall have been approved for listing on the NYSE, and satisfactory evidence thereof shall have been provided to you.
(i) FINRA shall have raised no objection to the fairness and reasonableness as of the underwriting terms and arrangements.
(j) The “lock-up” agreements, each substantially in the form of Exhibit D hereto, between you and Genco and each officer and director of the Company relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, shall be contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in full force and effect on the Closing Date. The several obligations light of the Underwriters to purchase Optional Shares hereunder are subject to the delivery to you on the applicable Option Closing Date of such documents as you may reasonably request with respect to the good standing of the Companycircumstances under which they were made, the due authorization and issuance of the Optional Shares to be sold on such Option Closing Date and other matters related to the issuance of such Optional Sharesnot misleading.
Appears in 1 contract
Samples: Underwriting Agreement (Marsh & McLennan Companies Inc)
Conditions to the Underwriters’ Obligations. The several Underwriter’s obligations of the Underwriters are hereunder shall be subject to the due performance in all material respects by the Obligated Group and the Issuer of their obligations and agreements to be performed hereunder at or prior to the Closing and to the accuracy of and compliance with in all material respects their representations and warranties contained herein, as of the date hereof and as of the Closing, and are also subject to receipt of the following evidence and documents and satisfaction of the following conditions, as appropriate, at or prior to the Closing:
(a) Subsequent to The Issuer Documents, the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined for purposes of Section 15c3-1(c)(2)(vi)(F) under the Exchange Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus as of the date of this Agreement that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Offered Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an opinion and statement of Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP, outside counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit A hereto.
(d) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxxx P.C, Xxxxxxxx Islands counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit B hereto.
(e) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxx LLP, special U.S. maritime environmental counsel and Liberian counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit C hereto.
(f) The Underwriters shall have received on the Closing Date an opinion and statement of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel for the Underwriters, dated the Closing Date, with respect to such matters as may be requested by the Underwriters.
(g) The Underwriters shall have received, on each of the date hereof Obligated Group Documents and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Deloitte & Touche LLP, independent public accountants, 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, the Time of Sale Prospectus and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
(h) The Offered Shares Construction Documents shall have been approved for listing on the NYSEduly authorized, executed, and satisfactory evidence thereof shall have been provided to you.
(i) FINRA shall have raised no objection to delivered by the fairness and reasonableness of the underwriting terms and arrangements.
(j) The “lock-up” agreements, each substantially respective parties thereto in the form of Exhibit D heretoforms heretofore approved by the Underwriter with only such changes therein as shall be mutually agreed upon by the parties thereto and the Underwriter, between you and Genco and each officer and director of the Company relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the date of the Closing.
(b) At or before the Closing, the Underwriter shall receive:
(1) Copies of the original executed counterparts of this Bond Purchase Agreement, the Issuer Documents, the Financing Documents (as defined in the Indenture), the Obligated Group Documents, the Construction Documents and the Limited Public Offering Memorandum.
(2) The following opinions, dated the date of the Closing:
(i) a bond counsel opinion of Xxxx & Xxxxxx LLP, Bond Counsel, attached as Appendix to the Limited Public Offering Memorandum, and a reliance letter addressed to the Underwriter, in form and substance satisfactory to the Underwriter;
(ii) a supplemental opinion of Xxxx & Xxxxxx LLP, Bond Counsel, in form and substance satisfactory to the Underwriter;
(iii) an opinion of Xxxxxxx Xxxxx, Lake County Attorney, as counsel to the Issuer, in the form and substance satisfactory to the Underwriter;
(iv) an opinion of Xxxxx X. Xxxxx, P.A., counsel to the Obligated Group, in form and substance satisfactory to the Underwriter; and
(v) an opinion of Xxxxxx Snow LLP, Underwriter’s Counsel, in form and substance satisfactory to the Underwriter.
(3) A certificate of the Issuer dated the Closing Date. The several obligations , signed by an authorized official thereof, and in form and substance satisfactory to the Underwriter, to the effect that: (i) the representations, warranties and agreements of the Underwriters to purchase Optional Shares hereunder Issuer contained in the Issuer’s Documents are subject to the delivery to you best of their knowledge true and correct in all material respects as of the Closing Date as if made on the applicable Option Closing Date; (ii) the Issuer has complied with all agreements, covenants and satisfied all conditions on its part to be complied with, performed or satisfied by the Issuer at or prior to the Closing Date of such documents as you may reasonably request with respect under the Issuer’s Documents; and (iii) the information relating to the good standing Issuer under the headings “SHORT STATEMENT – The Issuer,” “THE ISSUER” and “LITIGATION - The Issuer” in the Limited Public Offering Memorandum fairly and accurately summarize the legal matters set forth therein.
(4) A closing certificate of the CompanyObligated Group, satisfactory in form and substance to the Underwriter, executed by an authorized representative of the Obligated Group, attested to the satisfaction of the Underwriter, dated as of the date of the Closing, to the effect that: (i) since the date hereof there has not been any material adverse change in the business, properties, financial position, or results of operations of the Obligated Group, whether or not arising from transactions in the ordinary course of business, other than as previously disclosed in writing to the Underwriter, and except in the ordinary course of business, the due authorization and issuance of the Optional Shares to be sold on such Option Closing Date and Obligated Group has not suffered or incurred any material liability, other matters related than as previously disclosed in writing to the issuance of such Optional Shares.Underwriter,
Appears in 1 contract
Samples: Bond Purchase Agreement
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined for purposes of Section 15c3-1(c)(2)(vi)(FRule 436(g)(2) under the Exchange Securities Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus as of the date of this Agreement that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Offered Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c1) The Underwriters shall have received on the Closing Date an opinion and statement negative assurance letter of Xxxxxx Xxxxx Xxxxxxxx Kxxxxx, Sxxxxxxx & Xxxxxxx LLPKxxxxx, P.A., outside counsel for the Company, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriters, to the effect set forth in Exhibit A B-1 hereto, and such counsel shall have received such documents and information as they may reasonably request to enable them to pass upon such matters; and (2) the Underwriters shall have received on the Closing Date an opinion of Jxxxxx Xxxxx, Senior Vice President and General Counsel of the Company, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriters, to the effect set forth in Exhibit B-2 hereto.
(d) The Underwriters shall have received on the Closing Date an opinion and negative assurance letter of Xxxxxx Sxxxxxx Xxxxxxx & Xxxxxxx P.C, Xxxxxxxx Islands counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit B hereto.
(e) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxx LLP, special U.S. maritime environmental counsel and Liberian counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit C hereto.
(f) The Underwriters shall have received on the Closing Date an opinion and statement of Xxxxxx, Xxxxx & Xxxxxxx Bxxxxxxx LLP, counsel for the Underwriters, dated the Closing Date, with respect to such matters covering as the Managers may be requested by the Underwritersreasonably request, and such counsel shall have received such documents and information as they may reasonably request to enable them to pass upon such matters.
(ge) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Deloitte & Touche KPMG LLP, independent public accountants, 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, the Time of Sale Prospectus and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
(h) The Offered Shares shall have been approved for listing on the NYSE, and satisfactory evidence thereof shall have been provided to you.
(i) FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(jf) The “lock-up” agreements, each substantially in the form of Exhibit D A hereto, between you and Genco each of the executive officers and each officer and director directors of the Company listed on Schedule III hereto relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date. The several obligations of the Underwriters to purchase Optional Additional Shares hereunder are subject to the delivery to you on the applicable Option Closing Date of such documents as you may reasonably request with respect to the good standing of the Company, the due authorization and issuance of the Optional Additional Shares to be sold on such Option Closing Date and other matters related to the issuance of such Optional Additional Shares.
Appears in 1 contract
Conditions to the Underwriters’ Obligations. The several obligations of each of the Underwriters are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined for purposes of Section 15c3-1(c)(2)(vi)(FRule 436(g)(2) under the Exchange Securities Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus as of the date of this Agreement General Disclosure Package that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Offered Shares on the terms and in the manner contemplated in the Time of Sale ProspectusGeneral Disclosure Package.
(b) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an opinion and statement of Xxxxxx Xxxxx Xxxxxxxx Cxxxxxx Dxxx & Xxxxxxx LLPPxxxxxx, outside special Bermuda counsel for the Company, dated the Closing Date, to in substantially the effect set forth in form attached hereto as Exhibit A hereto.B.
(d) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx Shearman & Xxxxxxx P.CSterling LLP, Xxxxxxxx Islands special U.S. counsel for the Company, dated the Closing Date, to in substantially the effect set forth in form attached hereto as Exhibit B hereto.C.
(e) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxx LLPJxxxxxxx Xxxxxx, special U.S. maritime environmental counsel and Liberian counsel General Counsel for the Company, dated the Closing Date, to in substantially the effect set forth in form attached hereto as Exhibit C hereto.D.
(f) The Underwriters shall have received on the Closing Date an opinion and statement of Xxxxxx, Xxxxx Dxxxx Xxxx & Xxxxxxx Wxxxxxxx LLP, counsel for the Underwriters, dated the Closing Date, with respect to such matters this Agreement, the General Disclosure Package and the Prospectus. Shearman & Sterling LLP and Dxxxx Xxxx & Wxxxxxxx LLP may state that their opinion and belief are based upon their participation in the preparation of the Registration Statement, the General Disclosure Package and the Prospectus and any amendments or supplements thereto and documents incorporated therein by reference and review and discussion of the contents thereof, but are without independent check or verification, except as may specified. The opinions of Cxxxxxx Dxxx & Pxxxxxx, Sxxxxxxx & Sterling LLP and Jxxxxxxx Xxxxxx as described in Sections 5(c), (d), and (e) above, shall each be requested by rendered to the UnderwritersUnderwriters at the request of the Company and shall so state therein.
(g) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Deloitte & Touche LLPTouche, independent public accountants, 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, the Time of Sale Prospectus General Disclosure Package and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
(h) The Offered Shares shall have been approved for listing on the NYSE, and satisfactory evidence thereof shall have been provided to you.
(i) FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(j) The “lock-up” agreements, each substantially in the form of Exhibit D A hereto, between you and Genco certain officers and each officer and director directors of the Company relating to sales and certain other dispositions of shares of Common Stock Shares or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date. The several obligations of the Underwriters to purchase Optional Additional Shares hereunder are subject to the delivery to you on the applicable Option Closing Date of such documents as you may reasonably request with respect to the good standing of the Company, the due authorization and issuance of the Optional Additional Shares to be sold on such Option Closing Date and other matters related to the issuance of such Optional the Additional Shares.
Appears in 1 contract
Samples: Underwriting Agreement (Bunge LTD)
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters hereunder, on each applicable Closing Date, are subject to the following conditions:
(a) Subsequent to the execution and delivery Time of this Agreement Sale and prior to the First Closing Date and the Second Closing Date, as applicable:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “"nationally recognized statistical rating organization,” " as such term is defined for purposes in Section 3(a)(62) of Section 15c3-1(c)(2)(vi)(F) under the Exchange Act; and
(ii) there shall not have occurred any change, or any development involving a prospective changeMaterial Adverse Change that, in the condition, financial or otherwise, or in the earnings, business or operations judgment of the Company and its subsidiariesRepresentatives, taken as a wholemakes it impracticable or inadvisable to market, from that set forth in offer, sell or deliver the Time of Sale Prospectus as of the date of this Agreement that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Offered Shares Securities being delivered on such Closing Date on the terms and in the manner contemplated in the Time of Sale ProspectusProspectus and by this Agreement.
(b) The Underwriters shall have received on the such Closing Date a certificate, satisfactory to them, dated the such Closing Date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i5(a) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the such Closing Date and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the such Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters Prospectus shall have received been filed with the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for such filing by the rules and regulations under the Securities Act and in accordance with Section 6(a) hereof; the final term sheet contemplated by Section 6(b) hereof, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; no stop order suspending or preventing the use of the Prospectus or any free writing prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the Closing Date an opinion and statement part of Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP, outside counsel for the Company, dated the Closing Date, Commission shall have been complied with to the effect set forth in Exhibit A heretoyour reasonable satisfaction.
(d) The Underwriters shall have received on the such Closing Date an opinion of Xxxxxx Sxxxxxxx Ronon Sxxxxxx & Xxxxxxx P.CYxxxx, Xxxxxxxx Islands LLP, outside counsel for the Company, dated the such Closing Date, to in substantially the effect set forth in Exhibit B form of Annex A hereto.
(e) The Underwriters shall have received on the such Closing Date an opinion of Xxxxxx Sxxxxxxx & Xxxxxx LLP, special U.S. maritime environmental counsel and Liberian counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit C hereto.
(f) The Underwriters shall have received on the Closing Date an opinion and statement of Xxxxxx, Xxxxx & Xxxxxxx Cxxxxxxx LLP, counsel for the Underwriters, dated the such Closing Date, with respect to covering such matters as the Representatives may be requested by the Underwritersreasonably require; and such counsel shall have received such documents and information as they may reasonably request to enable them to pass upon such matters.
(gf) The Underwriters shall have received, on each of the date hereof and the on each Closing Date, a letter dated the date hereof or the applicable Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Deloitte & Touche each of BDO USA LLP and Bxxxx Txxxx Xxxxxxx Xxxxxx, LLP, each of which are independent public accountants, 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 or incorporated by reference in the Registration Statement, the Time of Sale Prospectus and the Prospectus; provided that each of the letter letters delivered on the Closing Date shall use a “cut-off "cutoff date” " not earlier more than three business days prior to the date hereofhereof or such Closing Date, as applicable.
(g) The Company shall have duly filed the Statement with Respect to Shares with the Department of State of the Commonwealth of Pennsylvania prior to the First Closing Date.
(h) The Offered Shares Company shall have been approved for listing authorized the Securities to be sold on such Closing Date to be listed on the NYSE, and satisfactory evidence thereof shall have been provided to you.
(i) FINRA On or prior to such Closing Date, the Company shall have raised no objection furnished to the fairness Representatives such further certificates and reasonableness of the underwriting terms and arrangements.
(j) The “lock-up” agreements, each substantially in the form of Exhibit D hereto, between you and Genco and each officer and director of the Company relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date. The several obligations of the Underwriters to purchase Optional Shares hereunder are subject to the delivery to you on the applicable Option Closing Date of such documents as you the Representatives may reasonably request with respect to the good standing of the Company, the due authorization and issuance of the Optional Shares to be sold on such Option Closing Date and other matters related to the issuance of such Optional Sharesrequest.
Appears in 1 contract
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date and any Option Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined for purposes of Section 15c3-1(c)(2)(vi)(F3(A)(62) under of the Exchange Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business business, prospects or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus as of the date of this Agreement that, in your judgment, is material and adverse or is reasonably likely to be material and adverse, and that makes it, in your judgment, impracticable to market the Offered Shares Securities on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i) above and to the effect that (i) the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and (ii) that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an opinion and statement negative assurance letter of Xxxxxx Xxxxx Xxxxxxxx Xxxxxxxxx & Xxxxxxx LLP, outside special counsel for the Company, dated the Closing Date, in the form previously agreed, which shall be rendered to the effect set forth in Exhibit A heretoUnderwriters at the request of the Company and shall so state therein.
(d) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx Hunton & Xxxxxxx P.CXxxxxxxx LLP, Xxxxxxxx Islands Virginia counsel for the Company, dated the Closing Date, in the form previously agreed, which shall be rendered to the effect set forth in Exhibit B heretoUnderwriters at the request of the Company and shall so state therein.
(e) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxx LLP, special U.S. maritime environmental intellectual property counsel and Liberian counsel for to the Company, dated the Closing Date, to in the effect set forth in Exhibit C heretoform previously agreed.
(f) The Underwriters shall have received on the Closing Date an opinion and statement or opinions of Xxxxxx, Xxxxx Ropes & Xxxxxxx Xxxx LLP, counsel for the Underwriters, dated the Closing Date, with respect in form and substance reasonably satisfactory to the Managers, and such matters counsel shall have received such papers and information as they may be requested by the Underwritersreasonably request to enable them to pass upon such matters.
(g) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Deloitte Ernst & Touche Young LLP, independent public accountants, 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, the Time of Sale Prospectus and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
(h) The Offered Shares shall have been approved for listing on the NYSE, and satisfactory evidence thereof shall have been provided to you.
(i) FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(j) The “lock-up” agreements, each substantially in the form of Exhibit D Annex B hereto, between you and Genco and each executive officer and director of the Company relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date. .
(i) The several obligations of the Underwriters to purchase Optional Shares Securities hereunder are subject to the delivery to you on the applicable Option Closing Date of the following:
(i) a certificate, dated the Option Closing Date and signed by an executive officer of the Company, confirming that the certificate delivered on the Closing Date pursuant to Section 5(b) hereof remains true and correct as of such Option Closing Date;
(ii) an opinion and negative assurance letter of Xxxxxxxxx & Xxxxxxx LLP, special counsel for the Company, dated the Option Closing Date, relating to the Optional Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 5(c) hereof;
(iii) an opinion of Hunton & Xxxxxxxx LLP, Virginia counsel for the Company, dated the Option Closing Date, relating to the Optional Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 5(d) hereof;
(iv) an opinion of Xxxxxx LLP, intellectual property counsel to the Company, dated the Option Closing Date and otherwise to the same effect as the opinion required by Section 5(e) hereof;
(v) an opinion or opinions of Ropes & Xxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Optional Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 5(f) hereof;
(vi) a letter dated the Option Closing Date, in form and substance satisfactory to the Underwriters, from Ernst & Young, LLP, independent public accountants, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 5(g) hereof; provided that the letter delivered on the Option Closing Date shall use a “cut-off date” not earlier than three business days prior to such Option Closing Date; and
(vii) such other documents as you may reasonably request with respect to the good standing of the Company, the due authorization and issuance of the Optional Shares Securities to be sold on such Option Closing Date and other matters related to the issuance of such Optional SharesSecurities.
(j) The Underwriters shall have received, on each of the date hereof and the Closing Date, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, a certificate executed by the Chief Financial Officer of the Company with respect to certain financial information contained in the Registration Statement, the Time of Sale Prospectus and the Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement (INSMED Inc)
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate no order suspending the direction effectiveness of the possible changeRegistration Statement shall be in effect, in and no proceeding for such purpose or pursuant to Section 8A under the rating accorded any of Securities Act shall be pending before or threatened by the securities of Commission;
(ii) neither the Company or nor any of its subsidiaries has any securities rated by any “nationally recognized statistical rating organization,” as such term is defined for purposes in Section 3(a)(62) of Section 15c3-1(c)(2)(vi)(F) under the Exchange Act”; and
(iiiii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus as of the date of this Agreement that, in your X. Xxxxx’x judgment, is material and adverse and that makes it, in your X. Xxxxx’x judgment, impracticable to market the Offered Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Company, to the effect set forth in Section Sections 5(a)(i) and 5(a)(ii) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an opinion and statement negative assurance letter of Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx Xxxxxxxxx Xxxxxxx, LLP, outside counsel for the Company, dated the Closing Date, in form and substance reasonably acceptable to the effect set forth in Exhibit A heretoUnderwriters.
(d) The Underwriters shall have received on the Closing Date an opinion and negative assurance letter of Xxxxxx & Xxxxxxx P.C, Xxxxxxxx Islands counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit B hereto.
(e) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx & Xxxxx Xxxxxx LLP, special U.S. maritime environmental counsel and Liberian counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit C hereto.
(f) The Underwriters shall have received on the Closing Date an opinion and statement of Xxxxxx, Xxxxx & Xxxxxxx LLP, outside counsel for the Underwriters, dated the Closing Date, with respect in form and substance reasonably acceptable to such matters as may be requested by the Underwriters.
(ge) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Deloitte & Touche PricewaterhouseCoopers LLP, independent public accountants, 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, the Time of Sale Prospectus and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
(hf) The Offered Shares Company and the Depositary shall have been approved for listing on executed and delivered the NYSE, Deposit Agreement and satisfactory evidence thereof shall have been provided to youthe Depositary Receipts.
(ig) FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(j) The “lock-up” agreements, each substantially in the form of Exhibit D hereto, between you and Genco and each officer and director of the Company relating to sales and certain such other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date. The several obligations of the Underwriters to purchase Optional Shares hereunder are subject to the delivery to you on the applicable Option Closing Date of such documents as you X. Xxxxx may reasonably request with respect to the good standing of the Company, the due authorization and issuance of the Optional Firm Shares to be sold the Closing Date and other matters related to the issuance of such Firm Shares.
(h) The several obligations of the Underwriters to purchase Additional Shares hereunder are subject to the delivery to X. Xxxxx on the applicable Option Closing Date of the following:
(i) a certificate, dated the Option Closing Date and signed by an executive officer of the Company, confirming that the certificate delivered on the Closing Date pursuant to Section 5(b) hereof remains true and correct as of such Option Closing Date;
(ii) an opinion and negative assurance letter of Xxxxxxxxx Xxxxxxx, LLP, outside counsel for the Company, dated the Option Closing Date, relating to the Additional Shares to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 5(c) hereof;
(iii) an opinion and negative assurance letter of Xxxxx Xxxxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Additional Shares to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 5(d) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Underwriters, from PricewaterhouseCoopers, LLP, independent public accountants, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 5(e) hereof; provided that the letter delivered on the Option Closing Date shall use a “cut-off date” not earlier than two business days prior to such Option Closing Date; and
(v) such other documents as X. Xxxxx may reasonably request with respect to the good standing of the Company, the due authorization and issuance of the Additional Shares to be sold on such Option Closing Date and other matters related to the issuance of such Optional Additional Shares.
Appears in 1 contract
Samples: Underwriting Agreement (Cadiz Inc)
Conditions to the Underwriters’ Obligations. The several obligations of the Sellers to sell the Shares to the Underwriters and the several obligations of the Underwriters to purchase and pay for the Shares on the Closing Date are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
, (i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined for purposes of Section 15c3-1(c)(2)(vi)(FRule 436(g)(2) under the Exchange Securities Act; and
and (ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus as of the date of this Agreement that, in your the Representatives judgment, is material and adverse and that makes it, in your the Representatives judgment, impracticable to market the Offered Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i6(a) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date Date, and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an opinion and statement of Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP, outside counsel for the Companyfrom each Selling Shareholder a certificate, dated the Closing DateDate and signed by an appropriate officer of such Selling Shareholder, to the effect set forth that the representations and warranties of such Selling Shareholder contained in Exhibit A heretothis Agreement are true and correct as of the Closing Date and that such Selling Shareholder has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date.
(d) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxxx P.CXxxxxx, Xxxxxxxx Professional Corporation, U.S. counsel for the Company, dated the Closing Date to the effect set forth in Exhibit B.
(e) The Underwriters shall have received on the Closing Date an opinion of Walkers, Cayman Islands counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit B hereto.
(e) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxx LLP, special U.S. maritime environmental counsel and Liberian counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit C hereto.C.
(f) The Underwriters shall have received on the Closing Date an opinion of Xxxxxxxx & Thong-Ek Thailand Law Offices Limited, Thai counsel for the Company, dated the Closing Date to the effect set forth in Exhibit D.
(g) The Underwriters shall have received on the Closing Date an opinion dated the Closing Date of the respective counsel for each of the Selling Shareholders listed in Schedule I hereto to the effect set forth in Xxxxxxxx X, X, X, X, X and statement J with respect to each of Xxxxxx, the Selling Shareholders for whom they are acting as counsel.
(h) The Underwriters shall have received on the Closing Date an opinion of Xxxxx Xxxx & Xxxxxxx LLPXxxxxxxx, counsel for the Underwriters, dated the Closing Date, with respect Date in form and substance satisfactory to such matters as may be requested by the Underwriters.
(gi) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Deloitte & Touche LLPPricewaterhouseCoopers ABAS Ltd, independent public accountants, containing statements and information prepared in accordance with the guidance set forth in Statement on Auditing Standards 72, “Letters for Underwriters and Certain Other Requesting Parties”, issued by the American Institute of the type ordinarily included in accountants’ “comfort letters” to underwriters Certified Public Accountant, with respect to the financial statements and certain financial information contained in the Registration Statement, the Time of Sale Prospectus and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
(h) The Offered Shares shall have been approved for listing on the NYSE, and satisfactory evidence thereof shall have been provided to you.
(i) FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(j) The “lock-up” agreements, each substantially in the form of Exhibit D A hereto, between you the Representatives and Genco shareholders, officers, directors and each officer and director holders of options or warrants to purchase securities of the Company relating to sales and certain other dispositions of shares of Common Stock Ordinary Shares or certain other securities, delivered to you the Representatives on or before the date hereof, shall be in full force and effect on the Closing Date.
(k) The Registration Statement shall have become effective not later than [—] p.m. (New York City time) on the date hereof.
(l) As applicable, on the Closing Date the Representatives and counsel for the Underwriters shall have received such information, documents and opinions as they may reasonably require for the purposes of enabling them to pass upon the issuance and sale of the Shares as contemplated herein, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of any of the conditions or agreements, herein contained. The several obligations of the Underwriters to purchase Optional Additional Shares hereunder are subject to the delivery to you the Representatives on the applicable Option Closing Date of such documents as you the Representatives may reasonably request with respect to the good standing of the Company, the due authorization and issuance of the Optional Additional Shares to be sold on such Option Closing Date and other matters related to the issuance of such Optional Additional Shares.
Appears in 1 contract
Samples: Underwriting Agreement (Fabrinet)
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters are subject to the following conditions:
(a) No order suspending the effectivenss of the Registration Statement shall be in effect, and no proceeding for such purpose pursuant to Section 8A under the Securities Act shall be pending before or threatended by the Commission.
(b) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined for purposes of Section 15c3-1(c)(2)(vi)(F) under the Exchange Act; and
(ii) Date there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiariesSubsidiary, taken as a whole, from that set forth in the Time of Sale Prospectus as of the date of this Agreement that, in your the Representatives’ judgment, is material and adverse and that makes it, in your the Representatives’ judgment, impracticable to market the Offered Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(bc) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Company on behalf of the Company, to the effect set forth in Section 5(a)(i5(b) above above; and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to the proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an opinion and statement of Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP, outside counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit A hereto.
(d) The Underwriters shall have received on the Closing Date an opinion of and negative assurance letter from Xxxxxx & Xxxxxxx P.CXxxxxx Xxxxxxxxx Xxxx and Xxxx LLP, Xxxxxxxx Islands outside counsel for the Company, dated the Closing Date, in form and substance reasonably satisfactory to the effect set forth in Exhibit B heretoUnderwriters.
(e) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxx Xxxxxxx Procter LLP, special U.S. maritime environmental counsel and Liberian counsel for to the CompanyCompany with respect to certain intellectual property matters, dated the Closing Date, in form and substance reasonably satisfactory to the effect set forth in Exhibit C heretoUnderwriters.
(f) The Underwriters shall have received on the Closing Date an opinion and statement of Xxxxxx, Xxxxx negative assurance letter from Ropes & Xxxxxxx Xxxx LLP, counsel for the Underwriters, dated the Closing Date, with in form and substance reasonably satisfactory to the Underwriters. With respect to such matters Sections 5(d) and 5(f) above, Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP and Ropes & Xxxx LLP may state that their opinions and beliefs are based upon their participation in the preparation of the Registration Statement, the Time of Sale Prospectus and the Prospectus and any amendments or supplements thereto and review and discussion of the contents thereof, but are without independent check or verification, except as may specified. The opinions of Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP and Xxxxxxx Procter LLP described in Sections 5(d) and 5(e) above, respectively, shall be requested by rendered to the UnderwritersUnderwriters at the request of the Company and shall so state therein.
(g) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Deloitte Ernst & Touche Young LLP, independent public accountants, 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 included in the Registration Statement, the Time of Sale Prospectus and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
(h) The Offered Shares shall have been approved for listing on the NYSE, and satisfactory evidence thereof shall have been provided to you.
(i) FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(j) The “lock-up” agreements, each substantially in the form of Exhibit D A hereto, between you among SVB Leerink LLC, Xxxxx Xxxxxxx & Co. and Genco Xxxxxx, Xxxxxxxx & Company, Incorporated and each officer and director of the Company executive officers and directors and certain security holders of the Company, respectively, relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you the Representatives on or before the date hereofhereof (the “Lock-up Agreements”), shall be in full force and effect on the Closing Date. The several obligations of .
(i) Delivery to the Underwriters to purchase Optional Shares hereunder are subject to the delivery to you on the applicable Option Closing Date of such other documents as you the Representatives may reasonably request with respect to the good standing of the CompanyCompany and the Subsidiary, the due authorization and issuance of the Optional Firm Shares to be sold on the Closing Date and other matters related to the issuance of the Firm Shares.
(j) The several obligations of the Underwriters to purchase Additional Shares hereunder are subject to the delivery to the Underwriters on the applicable Option Closing Date of the following:
(i) a certificate, dated the Option Closing Date and signed by an executive officer of the Company on behalf of the Company, confirming that the certificate delivered on the Closing Date pursuant to Section 5(c) hereof remains true and correct as of such Option Closing Date;
(ii) an opinion and negative assurance letter from Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP , outside counsel for the Company, dated the Option Closing Date, relating to the Additional Shares to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 5(d) hereof;
(iii) an opinion of Xxxxxxx Procter LLP, special counsel to the Company with respect to certain intellectual property matters, dated the Option Closing Date and otherwise to the same effect as the opinion required by Section 5(e) hereof;
(iv) an opinion and negative assurance letter from Ropes & Xxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Additional Shares to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 5(f) hereof;
(v) a letter dated the Option Closing Date, in form and substance satisfactory to the Underwriters, from Ernst & Young LLP, independent public accountants, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 5(g) hereof; provided that the letter delivered on the Option Closing Date shall use a “cut-off date” not earlier than two business days prior to such Option Closing Date; and
(vi) such other documents as the Representatives may reasonably request with respect to the good standing of the Company and its Subsidiary, the due authorization and issuance of the Additional Shares to be sold on such Option Closing Date and other matters related to the issuance of such Optional Additional Shares.
Appears in 1 contract
Samples: Underwriting Agreement (Fulcrum Therapeutics, Inc.)
Conditions to the Underwriters’ Obligations. The respective obligations of the Fund and the Investment Adviser and the several obligations of the Underwriters hereunder are subject to the condition that the Registration Statement is effective as stated herein. The several obligations of the Underwriters are subject to the following further conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined for purposes of Section 15c3-1(c)(2)(vi)(F) under the Exchange Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a wholeFund or the Investment Adviser, from that set forth in the Time of Sale Prospectus as of the date of this Agreement that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Offered Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of each of the CompanyFund and the Investment Adviser, to the effect set forth in Section 5(a)(i) above and to the effect that the representations and warranties of the Company Fund and the Investment Adviser, as the case may be, contained in this Agreement are true and correct as of the Closing Date and that the Company such party has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The Each officer signing and delivering such a certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters Each of the Investment Adviser and the Fund shall have received performed all of their respective obligations to be performed hereunder on the Closing Date an opinion and statement of Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP, outside counsel for the Company, dated or prior to the Closing Date, to the effect set forth in Exhibit A hereto.
(d) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxxx P.CK&L Gates LLP, Xxxxxxxx Islands counsel for the CompanyFund, dated the Closing Date, in form and substance acceptable to the effect set forth in Exhibit B heretoUnderwriters and their legal counsel. The opinion of K&L Gates described herein shall be rendered to the Underwriters at the request of the Fund and shall so state therein.
(e) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx Chamberlain, Hrdlicka, White, Xxxxxxxx & Xxxxxx LLPXxxxxxx, special U.S. maritime environmental counsel and Liberian counsel for the CompanyInvestment Adviser, dated the Closing Date, in form and substance acceptable to the effect set forth in Exhibit C heretoUnderwriters and their legal counsel. The opinion of such counsel shall be rendered to the Underwriters at the request of the Fund and shall so state therein.
(f) The Underwriters shall have received on the Closing Date an the favorable opinion and statement of Xxxxxx, Xxxxxxx Xxxxx & Xxxxxxx LLP, counsel for the Underwriters, dated the Closing Date, with respect to and covering such matters as may be requested by the UnderwritersUnderwriters shall reasonably request.
(g) The Underwriters shall have received on the Closing Date a certificate from a duly authorized officer of the Custodian, certifying that the Custodian Agreement is in full force and effect and is a valid and binding agreement of the Custodian.
(h) The Underwriters shall have received on the Closing Date a certificate from a duly authorized officer of the Administrator certifying that the Administration Agreement is in full force and effect and is a valid and binding agreement of the Administrator.
(i) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Deloitte & Touche KPMG LLP, independent public accountants, 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, Statement and the Time of Sale Prospectus and the Prospectus; , provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
(hj) All filings, applications and proceedings taken by the Fund and the Investment Adviser in connection with the organization and registration of the Fund and the Shares under the Acts and the applicable Rules and Regulations shall be satisfactory in form and substance to you and counsel for the Underwriters.
(k) No action, suit, proceeding, inquiry or investigation shall have been instituted or threatened by the Commission which would adversely affect the Fund’s standing as a registered investment company under the Investment Company Act or the standing of the Investment Adviser as a registered investment adviser under the Advisers Act.
(l) The Offered Shares shall have been approved duly authorized for listing on the NYSENew York Stock Exchange, and satisfactory evidence thereof shall have been provided subject only to you.
(i) FINRA shall have raised no objection to the fairness and reasonableness official notice of the underwriting terms and arrangements.
(j) The “lock-up” agreements, each substantially in the form of Exhibit D hereto, between you and Genco and each officer and director of the Company relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Dateissuance thereof. The several obligations of the Underwriters to purchase Optional Additional Shares hereunder are subject to the delivery to you the Underwriters on the applicable Option Closing Date of such documents as you the Underwriters may reasonably request with respect to the good standing of the CompanyFund and the Investment Adviser, the due authorization and issuance of the Optional Additional Shares to be sold on such Option Closing Date and other matters related to the issuance of such Optional Additional Shares, and officers’ certificates and opinions of K&L Gates, Chamberlain, Hrdlicka, White, Xxxxxxxx & Xxxxxxx and Xxxxxxx Xxxxx LLP to the effect set forth above, except that such certificates and opinions shall be dated as of the applicable Option Closing Date and statements and opinions above contemplated to be given as of the Closing Date shall instead be made and given as of such Option Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (Salient MLP & Energy Infrastructure Fund)
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) except as otherwise agreed to the parties hereto, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities of or the Company Company’s financial strength or any of its subsidiaries claims-paying ability by any “nationally recognized statistical rating organization,” as such term is defined for purposes of Section 15c3-1(c)(2)(vi)(FRule 436(g)(2) under the Exchange Securities Act; provided, however, that an ordinary course review that does not indicate a downward direction of the possible change shall not constitute a review for a possible change; and
(ii) there shall not have occurred any change, or any development involving a prospective change, material adverse change in the condition, financial or otherwise, condition or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus as of the date of this Agreement that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Offered Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an opinion and statement letter of Weil, Gotshal & Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP, outside U.S. counsel for the Company, dated the Closing Date, to the effect as set forth in Exhibit A heretoExhibits B-1 and B-2.
(d) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx Xxxxx & Xxxxxxx P.CXxXxxxx LLP, Xxxxxxxx Islands special U.S. regulatory counsel for the Company, dated the Closing Date, to the effect as set forth in Exhibit B hereto.C.
(e) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxx LLPXxxx X. Xxxxx, special U.S. maritime environmental counsel and Liberian counsel for Esq., the Company’s General Counsel, dated the Closing Date, to the effect as set forth in Exhibit C hereto.D.
(f) The Underwriters shall have received on the Closing Date an opinion and statement of Xxxxxx, Xxxxx Xxxx & Xxxxxxx LLPXxxxxxxx, counsel for the Underwriters, dated the Closing Date, with respect to such matters as may the Underwriters shall request. The opinions of Weil, Gotshal & Xxxxxx LLP, Xxxxx & XxXxxxx LLP and Xxxx X. Xxxxx, Esq. described in Sections 5(c)- 5(e) above shall be requested by rendered to the UnderwritersUnderwriters at the request of the Company and shall so state therein.
(g) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Deloitte & Touche KPMG LLP, independent public accountants, 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, the Time of Sale Prospectus and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
(h) The Offered Shares shall have been approved for listing on the NYSE, and satisfactory evidence thereof shall have been provided to you.
(i) FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(j) The “lock-up” agreements, each substantially in the form of Exhibit D A hereto, between you and Genco and each executive officer and director of the Company relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date. .
(i) The several obligations Underwriters shall have received, on each of the Underwriters to purchase Optional Shares hereunder are subject date hereof and the Closing Date, a certificate of Xxx X. Xxxxxx, the Company’s Vice President and Controller, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the delivery to you on the applicable Option Closing Date of such documents as you may reasonably request with respect to the good standing of the Company, the due authorization and issuance of the Optional Shares to be sold on such Option Closing Date and other matters related to the issuance of such Optional SharesUnderwriters.
Appears in 1 contract
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined for purposes in Section 3(a)(62) of Section 15c3-1(c)(2)(vi)(F) under the Exchange Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus as of the date of this Agreement that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Offered Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i6(a)(i) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an opinion and statement negative assurance letter of Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx Xxxxx LLP, outside counsel for the Company, and an opinion of Xxxxxxxxx X. Xxxxxxxx, General Counsel for the Company, each dated the Closing DateDate in the forms previously mutually agreed upon between Xxxxxxxx & Xxxxx LLP and Xxxxx Xxxx & Xxxxxxxx LLP, to outside counsel for the effect set forth in Exhibit A heretoUnderwriters.
(d) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx Xxxxxxxx & Xxxxxxx P.CXxxxx LLP, Xxxxxxxx Islands counsel for the CompanySelling Shareholder, dated the Closing Date, to in the effect set forth in Exhibit B heretoform mutually agreed upon between Xxxxxxxx & Xxxxx LLP and Xxxxx Xxxx & Xxxxxxxx LLP, outside counsel for the Underwriters.
(e) The Underwriters shall have received on the Closing Date an opinion and negative assurance letter of Xxxxxx Xxxxx Xxxx & Xxxxxx Xxxxxxxx LLP, special U.S. maritime environmental counsel and Liberian counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit C hereto.
(f) The Underwriters shall have received on the Closing Date an opinion and statement of Xxxxxx, Xxxxx & Xxxxxxx LLP, outside counsel for the Underwriters, dated the Closing Date, in the form mutually agreed upon between the Representatives and Xxxxx Xxxx & Xxxxxxxx LLP. With respect to the negative assurance letter provided by each of Xxxxxxxx & Xxxxx LLP and Xxxxx Xxxx & Xxxxxxxx LLP referenced in paragraphs 6(c) and 6(e) above, Xxxxxxxx & Xxxxx LLP and Xxxxx Xxxx & Xxxxxxxx LLP may state that their opinions and beliefs are based upon their participation in the preparation of the Registration Statement, the Time of Sale Prospectus and the Prospectus and any amendments or supplements thereto and review and discussion of the contents thereof, but are without independent check or verification, except as specified. With respect to Section 6(d) above, Xxxxxxxx & Xxxxx LLP may rely upon an opinion or opinions of counsel for the Selling Shareholder and, with respect to factual matters and to the extent such matters counsel deems appropriate, upon the representations of the Selling Shareholder contained herein and in other documents and instruments; provided that (A) any such counsel for the Selling Shareholder is reasonably satisfactory to your counsel, (B) a copy of each opinion so relied upon is delivered to you and is in form and substance satisfactory to your counsel, (C) copies of any such other documents and instruments shall be delivered to you and shall be in form and substance reasonably satisfactory to your counsel and (D) Xxxxxxxx & Xxxxx LLP shall state in their opinion that they are justified in relying on each such other opinion. The opinions of Xxxxxxxx & Xxxxx LLP described in Sections 6(c) and 6(d) above (and any opinions of counsel for the Selling Shareholder referred to in the immediately preceding paragraph) shall be rendered to the Underwriters at the request of the Company or the Selling Shareholder, as the case may be requested by the Underwritersbe, and shall so state therein.
(gf) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Deloitte & Touche Xxxxx Xxxxxxxx LLP, independent public accountants, 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, the Time of Sale Prospectus and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
(h) The Offered Shares shall have been approved for listing on the NYSE, and satisfactory evidence thereof shall have been provided to you.
(i) FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(jg) The “lock-up” agreements, each substantially in the form of Exhibit D A hereto, between you and Genco certain shareholders, officers and each officer and director directors of the Company relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date. .
(h) The Registration Statement has become effective and, at the Closing Date, no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto has been issued under the Securities Act, no order preventing or suspending the use of the preliminary prospectus or the Prospectus has been issued and no proceedings for any of those purposes have been instituted or are pending or, to the Company’s knowledge, contemplated; and the Company has complied with each request (if any) from the Commission for additional information in all material respects.
(i) The several obligations of the Underwriters to purchase Optional Additional Shares hereunder are subject to the delivery to you on the applicable Option Closing Date of such documents as you may reasonably request with respect to the good standing of the Company, the due authorization and issuance of the Optional Additional Shares to be sold on such Option Closing Date and other matters related to the issuance of such Optional Additional Shares.
Appears in 1 contract
Samples: Underwriting Agreement (U.S. Silica Holdings, Inc.)
Conditions to the Underwriters’ Obligations. The obligations of the Sellers to sell the Shares to the Underwriters and the several obligations of the Underwriters to purchase and pay for the Shares on the Closing Date are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined for purposes in Section 3(a)(62) of Section 15c3-1(c)(2)(vi)(F) under the Exchange Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus as of the date of this Agreement that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Offered Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed on behalf of the Company by an executive officer of the Company, to the effect set forth in Section 5(a)(i6(a)(i) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an opinion and statement of Xxxxxx Xxxxx Xxxxxxxx Fenwick & Xxxxxxx West, LLP, outside counsel for the Company, dated the Closing Date, in the form acceptable to the effect set forth in Exhibit A heretoRepresentative.
(d) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx & (i) Xxxx Xxxxxxx P.CLLP, Xxxxxxxx Islands counsel for the CompanyFounder Selling Stockholder, and (ii) Xxxxxx & Xxxxxx LLP, counsel for the Non-Founder Selling Stockholder, each dated the Closing Date, Date and in the form acceptable to the effect set forth in Exhibit B heretoRepresentative.
(e) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx Xxxxxxx Xxxxxxx & Xxxxxx LLP, special U.S. maritime environmental counsel and Liberian counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit C hereto.
(f) The Underwriters shall have received on the Closing Date an opinion and statement of Xxxxxx, Xxxxx & Xxxxxxx Xxxxxxxx LLP, counsel for the Underwriters, dated the Closing Date, with in form and substance satisfactory to you. With respect to such matters Section 6(c) and Section 6(e) above, Fenwick & West LLP and Xxxxxxx Xxxxxxx & Xxxxxxxx LLP may state that their beliefs are based upon their participation in the preparation of the Registration Statement, the Time of Sale Prospectus and the Prospectus and any amendments or supplements thereto and review and discussion of the contents thereof, but are without independent check or verification, except as specified. With respect to Section 6(d) above, any counsel for the Selling Stockholders may rely upon the representations of each Selling Stockholder contained herein. The opinions of Fenwick & West LLP and the counsel for the Selling Stockholders described in Sections 6(c) and 6(d) above shall be requested by rendered to the UnderwritersUnderwriters at the request of the Company or one or more of the Selling Stockholders, as the case may be, and shall so state therein.
(gf) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Deloitte Ernst & Touche Young, LLP, independent registered public accountantsaccounting firm, 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, the Time of Sale Prospectus and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
(hg) The Offered Shares shall have been approved for listing on the NYSE, and satisfactory evidence thereof shall have been provided to you.
(i) FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(j) The “lock-up” agreements, each substantially in the form of Exhibit D hereto, between you and Genco and each chief financial officer and director of the Company relating to sales and certain other dispositions of shares of Common Stock or certain other securities, shall have delivered to you the Underwriters on or before the date hereof, shall be hereof a certificate in full force and effect on the Closing Date. The several obligations of the Underwriters to purchase Optional Shares hereunder are subject a form reasonably acceptable to the delivery to you on the applicable Option Closing Date of such documents as you may reasonably request with respect to the good standing of the Company, the due authorization and issuance of the Optional Shares to be sold on such Option Closing Date and other matters related to the issuance of such Optional SharesRepresentative.
Appears in 1 contract
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters Underwriter are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined for purposes of Section 15c3-1(c)(2)(vi)(FRule 436(g)(2) under the Exchange Securities Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus as of the date of this Agreement General Disclosure Package that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Offered Shares on the terms and in the manner contemplated in the Time of Sale ProspectusGeneral Disclosure Package.
(b) The Underwriters Underwriter shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters Underwriter shall have received on the Closing Date an opinion and statement of Xxxxxx Xxxxx Xxxxxxxx Xxxxxxx Xxxx & Xxxxxxx LLPXxxxxxx, outside special Bermuda counsel for the Company, dated the Closing Date, to in substantially the effect set forth in form attached hereto as Exhibit A hereto.C.
(d) The Underwriters Underwriter shall have received on the Closing Date an opinion of Xxxxxx Shearman & Xxxxxxx P.CSterling LLP, Xxxxxxxx Islands special U.S. counsel for the Company, dated the Closing Date, to in substantially the effect set forth in form attached hereto as Exhibit B hereto.D.
(e) The Underwriters Underwriter shall have received on the Closing Date opinions of Xxxxx Xxxx Xxxxx, General Counsel for the Company, dated the Closing Date, in substantially the form attached hereto as Exhibit E.
(f) The Underwriter shall have received on the Closing Date an opinion of Xxxxxx Xxxxx Xxxx & Xxxxxx LLP, special U.S. maritime environmental counsel and Liberian counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit C hereto.
(f) The Underwriters shall have received on the Closing Date an opinion and statement of Xxxxxx, Xxxxx & Xxxxxxx LLPXxxxxxxx, counsel for the UnderwritersUnderwriter, dated the Closing Date, with respect to such matters this Agreement, the General Disclosure Package and the Prospectus. Shearman & Sterling LLP and Xxxxx Xxxx & Xxxxxxxx may state that their opinion and belief are based upon their participation in the preparation of the Registration Statement, the General Disclosure Package and the Prospectus and any amendments or supplements thereto and documents incorporated therein by reference and review and discussion of the contents thereof, but are without independent check or verification, except as may specified. The opinions of Xxxxxxx Xxxx & Xxxxxxx, Xxxxxxxx & Sterling LLP and Xxxxx Xxxx Xxxxx as described in Sections 5(c), (d), and (e) above, shall each be requested by rendered to the UnderwritersUnderwriter at the request of the Company and shall so state therein.
(g) The Underwriters Underwriter shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the UnderwritersUnderwriter, from Deloitte & Touche LLPTouche, independent public accountants, 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, the Time of Sale Prospectus General Disclosure Package and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
(h) The Offered Shares shall have been approved for listing on the NYSE, and satisfactory evidence thereof shall have been provided to you.
(i) FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(j) The “lock-up” agreements, each substantially in the form of Exhibit D A hereto, between you and Genco certain officers and each officer and director directors of the Company relating to sales and certain other dispositions of shares of Common Stock Shares or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date. The several obligations of the Underwriters Underwriter to purchase Optional Additional Shares hereunder are subject to the delivery to you on the applicable Option Closing Date of such documents as you may reasonably request with respect to the good standing of the Company, the due authorization and issuance of the Optional Additional Shares to be sold on such Option Closing Date and other matters related to the issuance of such Optional the Additional Shares.
Appears in 1 contract
Samples: Underwriting Agreement (Bunge LTD)
Conditions to the Underwriters’ Obligations. The obligations of the Selling Shareholder to sell the Shares to the Underwriters and the several obligations of the Underwriters to purchase and pay for the Shares on the Closing Date are subject to the condition that the Registration Statement shall have become effective not later than 5:30 p.m. (New York City time) on the date hereof. The several obligations of the Underwriters are subject to the following further conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate : no order suspending the direction effectiveness of the possible changeRegistration Statement shall be in effect, in the rating accorded any of the securities of the Company and no proceeding for such purpose or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined for purposes of pursuant to Section 15c3-1(c)(2)(vi)(F) 8A under the Exchange ActSecurities Act shall be pending before or threatened by the Commission; and
(ii) and there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus as of the date of this Agreement that, in your the Representatives’ judgment, is material and adverse and that makes it, in your the Representatives’ judgment, impracticable to market the Offered Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(iSections 6(a)(i) and 6(a)(ii) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an opinion and statement negative assurance letter of Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx & Xxxxxxx LLP, outside counsel for the Company, dated the Closing Date, in form and substance reasonably satisfactory to the effect set forth in Exhibit A heretoRepresentatives.
(d) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxxx P.Cand Xxxxxx (Cayman) LLP, Xxxxxxxx Cayman Islands counsel for the Company, dated the Closing Date, in form and substance reasonably satisfactory to the effect set forth in Exhibit B heretoRepresentatives.
(e) The Underwriters shall have received on the Closing Date an opinion of each of Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP and Xxxxxx and Xxxxxx (Cayman) LLP, special U.S. maritime environmental counsel and Liberian both counsel for the CompanySelling Shareholder, dated the Closing Date, in form and substance reasonably satisfactory to the effect set forth in Exhibit C heretoRepresentatives.
(f) The Underwriters shall have received on the Closing Date an opinion and statement negative assurance letter of Xxxxxx, Xxxxx Xxxxxx & Xxxxxxx LLP, counsel for the Underwriters, dated the Closing Date, with in form and substance reasonably satisfactory to the Representatives. With respect to such matters the negative assurance letters to be delivered pursuant to Sections 6(c) and 6(f) above, Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP and Xxxxxx & Xxxxxxx LLP may state that their opinions and beliefs are based upon their participation in the preparation of the Registration Statement, the Time of Sale Prospectus and the Prospectus and any amendments or supplements thereto and review and discussion of the contents thereof, but are without independent check or verification, except as specified. The opinions of Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP and Xxxxxx and Xxxxxx (Cayman) LLP described in Sections 6(c), 6(d) and 6(e) above shall be rendered to the Underwriters at the request of the Company or the Selling Shareholder, as the case may be requested by the Underwritersbe, and shall so state therein.
(g) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Deloitte & Touche each of KPMG LLP and PricewaterhouseCoopers LLP, independent public accountants, 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, the Time of Sale Prospectus and the Prospectus; provided that the letter letters delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
(h) The Offered Shares shall have been approved for listing on Lock-up Agreements between the NYSE, Representatives and satisfactory evidence thereof shall have been provided to you.
(i) FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(j) The “lock-up” agreements, each substantially in the form of Exhibit D hereto, between you and Genco and each officer and director of the Company relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, Selling Shareholder shall be in full force and effect on the Closing Date.
(i) The Underwriters shall have received, on each of the date hereof and on the Closing Date, a certificate dated the date hereof or the Closing Date, as the case may be, in form and substance reasonably satisfactory to the Underwriters, signed by the chief financial officer of the Company, containing statements and information with respect to certain financial information contained in or incorporated by reference in the Registration Statement, the Time of Sale Prospectus and the Prospectus.
(j) The several obligations of the Underwriters to purchase Optional Additional Shares hereunder are subject to the delivery to you the Representatives on the applicable Option Closing Date of the following: a certificate, dated the Option Closing Date and signed by an executive officer of the Company, confirming that the certificate delivered on the Closing Date pursuant to Section 6(b) hereof remains true and correct as of such Option Closing Date; an opinion and negative assurance letter of Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP and an opinion of Xxxxxx and Xxxxxx (Cayman) LLP, outside counsel for the Company, dated the Option Closing Date, relating to the Additional Shares to be purchased on such Option Closing Date and otherwise to the same effect as the respective opinions required by Sections 6(c) and 6(d) hereof; opinions of each of Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP and Xxxxxx and Xxxxxx (Cayman) LLP, both counsel for the Selling Shareholder, dated the Option Closing Date, relating to the Additional Shares to be purchased on such Option Closing Date and otherwise to the same effect as the respective opinions required by Section 6(e) hereof; an opinion and negative assurance letter of Xxxxxx & Xxxxxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Additional Shares to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(f) hereof; a letter dated the Option Closing Date, in form and substance satisfactory to the Underwriters, from each of KPMG LLP and PricewaterhouseCoopers LLP, independent public accountants, substantially in the same form and substance as the respective letters furnished to the Underwriters pursuant to Section 6(g) hereof; provided that the letters delivered on the Option Closing Date shall use a “cut-off date” not earlier than two business days prior to such Option Closing Date; a certificate dated the Option Closing Date, in form and substance reasonably satisfactory to the Underwriters, signed by the chief financial officer of the Company, containing statements and information with respect to certain financial information contained in or incorporated by reference in the Registration Statement, the Time of Sale Prospectus and the Prospectus; and such other documents as you the Representatives may reasonably request with respect to the good standing of the Company, the due authorization and issuance of the Optional Additional Shares to be sold on such Option Closing Date and other matters related to the issuance sale of such Optional Additional Shares.
Appears in 1 contract
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters are subject hereunder shall be subject, in their discretion, to the condition that all representations and warranties and other statements of the Company herein are, at and as of the Closing Date, true and correct, the condition that the Company shall have performed all of its obligations hereunder theretofore to be performed, and the following additional conditions:
(a1) Subsequent to The Underwriters shall have received on the execution and delivery Closing Date an opinion of this Agreement and prior to Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, dated the Closing Date, covering the matters referred to in Sections 6(b)(1)(iii), 6(b)(1)(iv), 6(b)(1)(v), 6(b)(1)(viii)(A) (but only as to the statements under the captions “Underwriting” and “Description of Notes” and “Description of Debt Securities”) and 6(b)(1)(x) below, as well as such other related matters as you may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters; (2) the Underwriters shall have received on the Closing Date a letter of Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, dated the Closing Date covering the matters referred to in Section 6(b)(2) below, but as to clause (i) only as to the Registration Statement as of the date of this Agreement.
(1) The Underwriters shall have received on the Closing Date an opinion of Xxxxxxx & Xxxxxx L.L.C., outside counsel for the Company, dated the Closing Date, to the effect that:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for the Company is validly existing as a possible change that does not indicate corporation in good standing under the direction laws of the possible changeState of New York, in with corporate power and authority to own or lease, as the rating accorded any of the securities of the Company or any of case may be, and to operate its subsidiaries by any “nationally recognized statistical rating organization,” properties and to conduct its business as such term is defined for purposes of Section 15c3-1(c)(2)(vi)(F) under the Exchange Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth described in the Time of Sale Prospectus and the Prospectus;
(ii) each Material Subsidiary of the Company organized in the State of Delaware or New York and named in Schedule III hereto is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, with corporate power and authority to own or lease, as the case may be, and to operate its properties and to conduct its business as described in the Time of Sale Prospectus and the Prospectus;
(iii) this Agreement has been duly authorized, executed and delivered by the Company;
(iv) the Securities have been duly authorized by the Company and, when authenticated by the Trustee under the Indenture and executed, delivered and paid for in accordance with the terms of this Agreement, will be legal, valid and binding obligations of the Company, enforceable in accordance with their terms, except in each case: (a) as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or transfer, or similar laws relating to or affecting creditors’ rights generally and (b) as the enforceability thereof is subject to the application of general principles of equity (regardless of whether considered in a proceeding in equity or at law) including (i) the possible unavailability of specific performance, injunctive relief or any other equitable remedy and (ii) concepts of materiality, reasonableness, good faith and fair dealing; each registered holder of the Securities will be entitled to the benefits of the Indenture;
(v) the Indenture has been duly authorized, executed and delivered by the Company and constitutes a legal, valid and binding agreement of the Company, enforceable against it in accordance with its terms, except (a) as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or transfer, or similar laws relating to or affecting creditors’ rights generally, (b) as the enforceability thereof is subject to the application of general principles of equity (regardless of whether considered in a proceeding in equity or at law) including (i) the possible unavailability of specific performance, injunctive relief or any other equitable remedy and (ii) concepts of materiality, reasonableness, good faith and fair dealing and (c) in the case of rights to indemnity as may be limited by provisions imposed by law or public policy; the Indenture has been duly qualified under the Trust Indenture Act;
(vi) neither the execution and delivery by the Company of this Agreement nor the sale of the Securities by the Company thereunder will (i) result in a breach or violation of the restated certificate of incorporation or by-laws of the Company, each as amended, or (ii) constitute a breach or violation of, or a default under or result in the imposition of any lien, charge or encumbrance upon any property or assets of the Company pursuant to any applicable law, provided that such counsel expresses no opinion as to whether the indemnification provisions contained therein may be considered under applicable law to contravene public policy;
(vii) no consent, authorization, approval or order of, or registration, qualification or filing with, any United States federal or State of New York administrative, judicial or other governmental agency, authority, tribunal or body is required on the part of the Company for the execution and delivery by the Company of this Agreement or the Indenture or the consummation of the sale of the Securities by the Company thereunder, except such as have been made or obtained prior to the date hereof or as may be required under state securities or “blue sky” laws of any jurisdiction, as to which such counsel expresses no opinion;
(viii) the statements set forth (A) in the Time of Sale Prospectus and the Prospectus under the caption “Description of Debt Securities”, “Description of Notes” and, subject to the limitations and qualifications stated therein, “Certain U.S. Federal Tax Considerations for Non‑U.S. Holders” and (B) in the Registration Statement in Item 15, in each case to the extent that they purport to summarize provisions of certain agreements or documents referred to therein or U.S. federal income tax matters, fairly summarize in all material respects such provisions of such agreements, documents or matters;
(ix) the Company is not required to, and, immediately after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Prospectus, the Company will not be required to, register as an investment company under the Investment Company Act of 1940, as amended; and
(x) the Registration Statement, as of its effective date (including each deemed effective date pursuant to Rule 430B(f)(2)), and as of the date of this Agreement thatand the Prospectus, as of the date thereof (except any financial statements or other financial data included in or omitted from, or incorporated by reference in, the Registration Statement or the Prospectus, as to which no opinion is expressed) appear on their face to be appropriately responsive, in your judgmentall material respects relevant to the offering of the Securities, is material to the requirements of the Securities Act and adverse the Exchange Act, as applicable, and that makes itthe applicable rules and regulations of the Commission thereunder; in rendering this opinion, in your judgmentsuch counsel need not take responsibility for the accuracy, impracticable to market completeness or fairness of the Offered Shares on the terms and statements made in the manner contemplated Registration Statement or the Prospectus, except to the extent set forth in the Time of Sale Prospectusparagraph (viii).
(b2) The Underwriters shall have received on the Closing Date a certificateletter of Xxxxxxx & Xxxxxx, L.L.C., outside counsel for the Company, dated the Closing Date to the effect that nothing has come to such counsel’s attention that causes it to believe that: (i) the Registration Statement (other than the financial statements and signed schedules and other financial and accounting information and data, management’s report on the effectiveness of internal control over financial reporting, and that part of the Registration Statement that constitutes the Form T-1, as to which such counsel expresses no belief and makes no statement), as of the effective date of the Registration Statement (including each deemed effective date pursuant to Rule 430B(f)(2)) or as of the date of this Agreement, contained an 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; (ii) the Time of Sale Prospectus (other than the financial statements and other financial and accounting information and data and management’s report on the effectiveness of internal control over financial reporting, as to which such counsel expresses no belief and makes no statement), as of the Time of Sale, 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, not misleading; or (iii) the Prospectus (other than the financial statements and other financial and accounting information and data and management’s report on the effectiveness of internal control over financial reporting, as to which such counsel expresses no belief and makes no statement), as of its date or as of the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. With respect to the foregoing paragraph, such counsel may state that they reviewed the Registration Statement, the Time of Sale Prospectus, the Prospectus and each free writing prospectus identified in Schedule II to this Agreement, they reviewed certain corporate records and documents furnished to them by an executive officer the Company and they participated in discussions with representatives of the Company, independent registered public accountants for the Company and your representatives regarding the Registration Statement, the Time of Sale Prospectus, the Prospectus and each such free writing prospectus and related matters. The purpose of their professional engagement was not to the effect establish or confirm factual matters set forth in Section 5(a)(i) above the Registration Statement, the Time of Sale Prospectus or the Prospectus, and they have not undertaken to verify independently any of such factual matters. Moreover, many of the determinations required to be made in the preparation of the Registration Statement, the Time of Sale Prospectus and the Prospectus involve matters of a non-legal nature. Accordingly, they are not passing upon and do not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Time of Sale Prospectus or the Prospectus, and they make no representation that they have independently verified the accuracy, completeness or fairness of such statements except to the effect that the representations extent set forth in paragraph (b)(viii). In addition, they are not passing upon and warranties do not assume any responsibility for ascertaining whether or when any of the Company contained in this Agreement are true and correct as Time of Sale Prospectus or the Closing Date and that Prospectus was conveyed to any person for purposes of Rule 159 under the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatenedSecurities Act.
(c) The Underwriters shall have received on the Closing Date an opinion and statement of Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLPXxxxxxxxx, outside counsel for General Counsel of the Company, dated the Closing Date, in form and substance satisfactory to the Underwriters, to the effect set forth that:
(i) such counsel is of the opinion that each document, if any, filed pursuant to the Exchange Act and incorporated by reference in Exhibit A heretothe Time of Sale Prospectus or the Prospectus (other than the financial statements or other financial data and schedules included therein as to which such counsel need not express any opinion) complied when so filed as to form in all material respects with the Exchange Act and the rules and regulations of the Commission thereunder;
(ii) to the best of such counsel’s knowledge, (x) there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or to which any of the properties of the Company or any of its subsidiaries is subject other than as described in the Time of Sale Prospectus or the Prospectus and other than such legal or governmental proceedings which individually or in the aggregate are not material to the Company and its subsidiaries taken as a whole and no such proceedings are threatened by others, and (y) there are no statutes, regulations, contracts or other documents that are required to be described in the Time of Sale Prospectus or the Prospectus or to be filed or incorporated by reference as exhibits to the Registration Statement that are not described, filed, or incorporated as required; and
(iii) neither the execution and delivery by the Company of this Agreement, nor the sale of the Securities by the Company hereunder, results in a breach or violation of any agreement or other instrument known to such counsel binding upon the Company or any of its Material Subsidiaries or to which any of its or their properties are subject (including, without limitation, any credit agreement, indenture or other financing agreement) that is material to the Company and its subsidiaries, taken as a whole, or, to the best of such counsel’s knowledge, any judgment, order or decree that is material to the Company and its subsidiaries taken as a whole, of any governmental body, agency or court having jurisdiction over the Company or any subsidiaries or any of their properties.
(d) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxxx P.C, Xxxxxxxx Islands counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit B hereto.
(e) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxx LLP, special U.S. maritime environmental counsel and Liberian counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit C hereto.
(f) The Underwriters shall have received on the Closing Date an opinion and statement of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel for the Underwriters, dated the Closing Date, with respect to such matters as may be requested by the Underwriters.
(g) The Underwriters shall have received, on On each of the date hereof and the Closing Date, Ernst & Young LLP, independent registered public accountants, shall have furnished to you a letter or letters, dated the date hereof or the Closing Date, as the case may berespective dates of delivery thereof, in form and substance satisfactory to the Underwriters, from Deloitte & Touche LLP, independent public accountants, you containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in or incorporated by reference into the Registration Statement, the Time of Sale Prospectus and the Prospectus; provided that the letter letters delivered on the date hereof and on the Closing Date shall use a “cut-off date” not earlier no more than three business days prior to the date hereofhereof and the Closing Date, respectively.
(he) The Offered Shares Since the date of this Agreement, or if earlier, the respective dates as of which information is given in the Time of Sale Prospectus, there shall not have been approved for listing any change in the capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, shareholders’ equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Time of Sale Prospectus, the effect of which, in any such case described in this paragraph, is in the judgment of the Underwriters so material and adverse as to make it impracticable or inadvisable to proceed with the offering or the delivery of the Securities on the NYSE, terms and satisfactory evidence thereof shall have been provided to youin the manner contemplated in this Agreement and in the Time of Sale Prospectus and the Prospectus.
(f) On or after the date hereof (i) FINRA no downgrading shall have raised no objection to occurred in the fairness and reasonableness rating accorded the Company’s debt securities by any “nationally recognized statistical rating organization”, as that term is defined by the Commission in Section 3(a)(62) of the underwriting terms Exchange Act, and arrangements(ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Company’s debt securities.
(jg) The “lock-up” agreementsCompany shall have furnished or caused to be furnished to you at the Closing Date a certificate of Xxxxx Xxxxxxxxx, each substantially in Senior Vice President and Chief Financial Officer of the form Company, satisfactory to you as to the accuracy of Exhibit D hereto, between you the representations and Genco and each officer and director warranties of the Company relating to sales herein at and certain other dispositions as of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the such Closing Date. The several obligations of the Underwriters to purchase Optional Shares hereunder are subject , as to the delivery performance by the Company of all of its obligations hereunder to you on be performed at or prior to such Closing Date, as to the applicable Option Closing Date of matters set forth in subsection 6(e) and as to such documents other matters as you may reasonably request with respect to the good standing of the Company, the due authorization and issuance of the Optional Shares to be sold on such Option Closing Date and other matters related to the issuance of such Optional Sharesrequest.
Appears in 1 contract
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined for purposes of Section 15c3-1(c)(2)(vi)(F) under the Exchange Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, condition (financial or otherwise, ) or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in each of the Time of Sale Prospectus as of and the date of this Agreement Prospectuses that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Offered Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Underwriters shall have received on the Closing Date (A) a certificate, dated the Closing Date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct in all material respects as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The Date (it being understood that the officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened) and (B) a certificate, dated the Closing Date and signed by the secretary or similar officer of the Company, in form and substance previously agreed.
(c) The Underwriters shall have received on the Closing Date an opinion and statement of Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx Norton Xxxx Xxxxxxxxx Canada LLP, outside Canadian counsel for the CompanyCompany (and such counsel may arrange for separate deliveries of opinions of local counsel, where such counsel deems such delivery proper, as to the laws of the Province of British Columbia), dated the Closing Date, to the effect set forth in Exhibit A heretoform and substance previously agreed.
(d) The Underwriters shall have received on the Closing Date an opinion and negative assurance letter of Xxxxxx & Xxxxxxx P.CNorton Xxxx Xxxxxxxxx US LLP, Xxxxxxxx Islands outside U.S. counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit B heretoform and substance previously agreed.
(e) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxx Stikeman Elliott LLP, special U.S. maritime environmental counsel and Liberian Canadian counsel for the CompanyUnderwriters, dated the Closing Date, to the effect set forth in Exhibit C heretoform and substance previously agreed.
(f) The Underwriters shall have received on the Closing Date an opinion and statement a negative assurance letter of Xxxxxx, Xxxxx & Xxxxxxxxxx Xxxxxxx LLP, U.S. counsel for the Underwriters, dated the Closing Date, with respect to such matters as may be requested by the Underwritersin form and substance previously agreed.
(g) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Deloitte & Touche LLP, independent public accountantsXxxxx MacKay, 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, the Time of Sale Prospectus and the ProspectusProspectuses; provided that the letter delivered on the date hereof shall use a “cut-off date” not more than two business days prior to the date hereof and the letter delivered on the Closing Date shall use a “cut-off date” not earlier more than two business days prior to the date hereofClosing Date.
(h) The Offered Shares Underwriters shall have been approved for listing received, on each of the NYSEdate hereof and the Closing Date, and satisfactory evidence thereof shall have been provided to youa certificate of the chief financial officer of the Company covering such matters as previously agreed.
(i) FINRA The Shares and the Underwriter Warrant Shares shall have raised no objection been conditionally approved for listing and posting for trading on the TSX-V and the Nasdaq, subject only to the fairness satisfaction by the Company of customary conditions imposed by the TSX-V and reasonableness of the underwriting terms and arrangementsNasdaq in similar circumstances.
(j) The “lock-up” agreements, each substantially in the form of Exhibit D A hereto, between you and Genco the officers and each officer and director directors of the Company listed on Annex A hereto relating to sales and certain other dispositions of shares of Common Stock Shares or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date. .
(k) The several obligations of the Underwriters to purchase Optional Additional Shares hereunder are subject to the delivery to you on the applicable Option Closing Date of the following:
(i) a certificate, dated the Option Closing Date and signed by an executive officer of the Company, confirming that the certificates delivered on the Closing Date pursuant to Section 5(b) hereof remain true and correct as of such Option Closing Date;
(ii) an opinion of Norton Xxxx Xxxxxxxxx Canada LLP, outside Canadian counsel for the Company, dated the Option Closing Date, relating to the Additional Shares to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 5(c) hereof;
(iii) an opinion of Norton Xxxx Xxxxxxxxx US LLP, outside U.S. counsel for the Company, dated the Option Closing Date, relating to the Additional Shares to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 5(d) hereof;
(iv) an opinion of Stikeman Elliott LLP, Canadian counsel for the Underwriters, dated the Option Closing Date, relating to the Additional Shares to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 5(e) hereof;
(v) a negative assurance letter from Xxxxxxxxxx Xxxxxxx LLP, U.S. counsel for the Underwriters, dated the Option Closing Date, relating to the Additional Shares to be purchased on such Option Closing Date and otherwise to the same effect as the negative assurance letter required by Section 5(f) hereof;
(vi) a letter dated the Option Closing Date, in form and substance satisfactory to the Underwriters, from Xxxxx XxxXxxx, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 5(g) hereof; provided that the letter delivered on the Option Closing Date shall use a “cut-off date” not earlier than two business days prior to such Option Closing Date;
(vii) a certificate of the chief financial officer of the Company dated the Option Closing Date, substantially in the same form and substance as the certificate furnished to the Underwriters pursuant to Section 5(h) hereof; and
(viii) such other documents as you may reasonably request with respect to the good standing of the Company, the due authorization and issuance of the Optional Additional Shares to be sold on such Option Closing Date and other matters related to the issuance of such Optional Additional Shares.
Appears in 1 contract
Samples: Underwriting Agreement (ImmunoPrecise Antibodies Ltd.)
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters Company to sell the Shares to the Underwriter and the obligation of the Underwriter to purchase and pay for the Shares on the Closing Date are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined for purposes of Section 15c3-1(c)(2)(vi)(F) under the Exchange Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiariesSubsidiaries, taken as a whole, from that set forth in the Time Prospectus (exclusive of Sale Prospectus as of any amendments or supplements thereto subsequent to the date of this Agreement Agreement) that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Offered Shares on the terms and in the manner as contemplated in the Time of Sale Prospectushereby.
(b) The Underwriters Underwriter shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i5(a) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the date of this Agreement and the Closing Date and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) 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 shall be pending or, to the knowledge of the Company or you, shall be contemplated by the Commission.
(d) The Underwriters Underwriter shall have received on the Closing Date an opinion and statement of Xxxxxxxxxx Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP, outside counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit A hereto.that:
(di) The Underwriters shall the Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has the corporate power and authority to own its property and to conduct its business, in each case as described in the Registration Statement and the Prospectus, and is duly qualified to transact business and is in good standing in the District of Columbia and the States of Illinois and New York;
(ii) Allied Investment has been duly incorporated, is validly existing as a corporation, is in good standing under the laws of the jurisdiction of its incorporation, has the corporate power and authority to own its property and to conduct its business, in each case as described in the Registration Statement and the Prospectus, and is duly qualified to transact business and is in good standing in the District of Columbia and the State of California;
(iii) the authorized capital stock of the Company conforms in all material respects as to legal matters to the description thereof contained in the Prospectus under the caption "Description of Capital Stock";
(iv) the shares of Common Stock outstanding immediately prior to the issuance of the Shares have received on been duly authorized and are validly issued, fully paid and non-assessable;
(v) all of the Closing Date an opinion issued shares of Xxxxxx & Xxxxxxx P.C, Xxxxxxxx Islands counsel for capital stock of each Subsidiary are owned of record directly by the Company, dated and to such counsel's knowledge, are free and clear of all liens, encumbrances, equities or claims, except with respect to the Closing Datepreferred stock of Allied REIT owned by its employees or former employees (or persons related to such employees or former employees) and the Preferred Stock of Allied Investment owned by the SBA;
(vi) the Shares have been duly authorized and, when issued and delivered against payment therefor in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Shares will not be subject to any preemptive or similar rights under provisions of applicable law or the certificate of incorporation or bylaws of the Company or, to the effect set forth in Exhibit B hereto.best of such counsel's knowledge, any agreement or other instrument binding upon the Company or any of its Subsidiaries;
(evii) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxx LLPthis Agreement has been duly authorized, special U.S. maritime environmental counsel executed and Liberian counsel for delivered by the Company;
(viii) the execution and delivery by the Company of, dated and the Closing Dateperformance by the Company of its obligations under, this Agreement will not contravene any provision of applicable law or the certificate of incorporation or by-laws of the Company or, to the effect set forth best of such counsel's knowledge, any agreement or other instrument binding upon the Company or any of its Subsidiaries that is material to the Company and its Subsidiaries, taken as a whole, or, to the best of such counsel's knowledge, any judgment, order, writ or decree of any governmental body, agency or court having jurisdiction over the Company or any Subsidiary, and no consent, approval, authorization or order of, or qualification or filing with, any governmental body or agency is required for the performance by the Company of its obligations under this Agreement, except such as may be required by the National Association of Securities Dealers, Inc. or the securities or Blue Sky laws of the various states or of any foreign jurisdiction in Exhibit C hereto.connection with the offer and sale of the Shares by the Underwriter;
(fix) The Underwriters shall have received on the Closing Date an opinion statements (A) in the Prospectus under the captions "Certain Government Regulations," "Description of Capital Stock" and statement "Tax Status" and (B) in the Registration Statement in Item 29, in each case insofar as such statements constitute summaries of Xxxxxxthe legal matters, Xxxxx & Xxxxxxx LLPdocuments or proceedings referred to therein, counsel fairly present the information called for the Underwriters, dated the Closing Date, with respect to such legal matters, documents and proceedings and fairly summarize the matters as may be requested by the Underwriters.
(g) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory referred to the Underwriters, from Deloitte & Touche LLP, independent public accountants, 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, the Time of Sale Prospectus and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
(h) The Offered Shares shall have been approved for listing on the NYSE, and satisfactory evidence thereof shall have been provided to you.
(i) FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(j) The “lock-up” agreements, each substantially in the form of Exhibit D hereto, between you and Genco and each officer and director of the Company relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date. The several obligations of the Underwriters to purchase Optional Shares hereunder are subject to the delivery to you on the applicable Option Closing Date of such documents as you may reasonably request with respect to the good standing of the Company, the due authorization and issuance of the Optional Shares to be sold on such Option Closing Date and other matters related to the issuance of such Optional Shares.therein;
Appears in 1 contract
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date and any Option Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined for purposes of Section 15c3-1(c)(2)(vi)(F3(A)(62) under of the Exchange Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business business, prospects or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus as of the date of this Agreement that, in your judgment, is material and adverse or is reasonably likely to be material and adverse, and that makes it, in your judgment, impracticable to market the Offered Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i) above and to the effect that (i) the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and (ii) that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an opinion and statement negative assurance letter of Xxxxxx Xxxxx Xxxxxxxx Xxxxxxxxx & Xxxxxxx LLP, outside special counsel for the Company, dated the Closing Date, in the form previously agreed, which shall be rendered to the effect set forth in Exhibit A heretoUnderwriters at the request of the Company and shall so state therein.
(d) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx Hunton & Xxxxxxx P.CXxxxxxxx LLP, Xxxxxxxx Islands Virginia counsel for the Company, dated the Closing Date, in the form previously agreed, which shall be rendered to the effect set forth in Exhibit B heretoUnderwriters at the request of the Company and shall so state therein.
(e) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxx LLP, special U.S. maritime environmental intellectual property counsel and Liberian counsel for to the Company, dated the Closing Date, to in the effect set forth in Exhibit C heretoform previously agreed.
(f) The Underwriters shall have received on the Closing Date an opinion and statement or opinions of Xxxxxx, Xxxxx Ropes & Xxxxxxx Xxxx LLP, counsel for the Underwriters, dated the Closing Date, with respect in form and substance reasonably satisfactory to the Managers, and such matters counsel shall have received such papers and information as they may be requested by the Underwritersreasonably request to enable them to pass upon such matters.
(g) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Deloitte Ernst & Touche Young LLP, independent public accountants, 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, the Time of Sale Prospectus and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
(h) The Offered Shares shall have been approved for listing on the NYSE, and satisfactory evidence thereof shall have been provided to you.
(i) FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(j) The “lock-up” agreements, each substantially in the form of Exhibit D A hereto, between you and Genco and each executive officer and director of the Company relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date. .
(i) The several obligations of the Underwriters to purchase Optional Additional Shares hereunder are subject to the delivery to you on the applicable Option Closing Date of the following:
(i) a certificate, dated the Option Closing Date and signed by an executive officer of the Company, confirming that the certificate delivered on the Closing Date pursuant to Section 5(b) hereof remains true and correct as of such Option Closing Date;
(ii) an opinion and negative assurance letter of Xxxxxxxxx & Xxxxxxx LLP, special counsel for the Company, dated the Option Closing Date, relating to the Additional Shares to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 5(c) hereof;
(iii) an opinion of Hunton & Xxxxxxxx LLP, Virginia counsel for the Company, dated the Option Closing Date, relating to the Additional Shares to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 5(d) hereof;
(iv) an opinion of Xxxxxx LLP, intellectual property counsel to the Company, dated the Option Closing Date and otherwise to the same effect as the opinion required by Section 5(e) hereof;
(v) an opinion or opinions of Ropes & Xxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Additional Shares to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 5(f) hereof;
(vi) a letter dated the Option Closing Date, in form and substance satisfactory to the Underwriters, from Ernst & Young, LLP, independent public accountants, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 5(g) hereof; provided that the letter delivered on the Option Closing Date shall use a “cut-off date” not earlier than three business days prior to such Option Closing Date; and
(vii) such other documents as you may reasonably request with respect to the good standing of the Company, the due authorization and issuance of the Optional Additional Shares to be sold on such Option Closing Date and other matters related to the issuance of such Optional Additional Shares.
Appears in 1 contract
Samples: Underwriting Agreement (INSMED Inc)
Conditions to the Underwriters’ Obligations. The obligations of the Company to sell the Securities to the Underwriters and the several obligations of the Underwriters to purchase and pay for the Securities are subject to the condition that the Registration Statement shall be effective on the date hereof. The several obligations of the Underwriters are subject to the following further conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:: 6
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries the Company's securities or in the rating outlook for the Company by any “"nationally recognized statistical rating organization,” " as such term is defined for purposes of Section 15c3-1(c)(2)(vi)(FRule 436 (g)(2) under the Exchange Securities Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time Prospectus (exclusive of Sale Prospectus as of any amendments or supplements thereto subsequent to the date of this Agreement Agreement) that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Offered Shares Securities on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct in all material respects as of the Closing Date and that the Company has complied in all material respects with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officer of the Company signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an opinion and statement of Xxxxxx Xxxxx Xxxxxxxx of, Skadden, Arps, Slate, Meagxxx & Xxxxxxx LLPXlom XXX, outside special counsel for the Company, dated the Closing Date, to the effect set forth that:
(i) the Indenture has been qualified under the Trust Indenture Act and, assuming the due authorization, execution and delivery of the Indenture and the Supplemental Indenture by the Company and the Trustee, each of the Indenture and the Supplemental Indenture will be a valid and binding agreement of the Company, enforceable against the Company in Exhibit A heretoaccordance with its terms, except as the same may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and by general principles of equity;
(ii) assuming the due authorization, execution and delivery of the Indenture and the Supplemental Indenture by the Company, the Securities, when executed and authenticated in accordance with the provisions of the Indenture and the Supplemental Indenture and delivered to and paid for by the Underwriters in accordance with the terms of this Agreement, will be entitled to the benefits of the Indenture and the Supplemental Indenture and will be valid and binding obligations of the Company, enforceable in accordance with their terms, except as the same may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and by general principles of equity; 7
(iii) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Indenture and the Supplemental Indenture and the issuance and sale of the Securities will not contravene any provision of Applicable Law (as defined below), except such contraventions as would not, individually or in the aggregate, have a material adverse effect on the condition (financial and other), business, properties, net worth or results of operations of the Company and its subsidiaries, taken as a whole, provided that such counsel may state that they express no opinion under this paragraph with regard to the anti-fraud provisions of the Securities Act, the Exchange Act or the rules and regulations thereunder or the information contained in, the accuracy, completeness or correctness of, or the adequacy of the disclosure contained in, the Prospectus or the Registration Statement or the responsiveness thereof to the requirements of the Act and the rules and regulations thereunder which matters are addressed in paragraph 5(c)(vi) below and the second paragraph following paragraph 5(c)(vi) below; and no Governmental Approval is required for the performance by the Company of its obligations under this Agreement, the Indenture, the Supplemental Indenture or the Securities, except such as may be required by the Securities Act, the Exchange Act or the securities or Blue Sky laws of the various states and the securities laws of jurisdictions outside the United States in connection with the offer and sale of the Securities.
(div) The Underwriters shall have received on the Closing Date an opinion statements in the Prospectus under the captions "Description of Xxxxxx & Xxxxxxx P.CDebt Securities," "Description of Notes", Xxxxxxxx Islands counsel and "Underwriters" insofar as such statements constitute summaries of the legal matters, documents or proceedings referred to therein, fairly present the information called for the Company, dated the Closing Date, to the effect set forth in Exhibit B hereto.
(e) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxx LLP, special U.S. maritime environmental counsel and Liberian counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit C hereto.
(f) The Underwriters shall have received on the Closing Date an opinion and statement of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel for the Underwriters, dated the Closing Date, with respect to such legal matters, documents and proceedings and fairly summarize the matters as may be requested by the Underwriters.referred to therein;
(gv) The Underwriters shall have receivedthe Company is not and, on each after giving effect to the offering and sale of the date hereof Securities and the Closing Dateapplication of the proceeds thereof as described in the Prospectus, a letter dated will not be an "investment company" as such term is defined in the date hereof or the Closing DateInvestment Company Act of 1940, as the case may be, in form and substance satisfactory to the Underwriters, from Deloitte & Touche LLP, independent public accountants, containing statements and information amended; and
(vi) such counsel is of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to opinion that the Registration Statement and Prospectus (except for financial statements and certain schedules and other financial information contained and statistical data included therein as to which such counsel need not express any opinion) appeared on their face to be appropriately responsive in all material respects to the Registration Statement, requirements of the Time of Sale Prospectus Securities Act and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
(h) The Offered Shares shall have been approved for listing on the NYSE, applicable rules and satisfactory evidence thereof shall have been provided to you.
(i) FINRA shall have raised no objection to the fairness and reasonableness regulations of the underwriting terms and arrangementsCommission thereunder.
(j) The “lock-up” agreements, each substantially in the form of Exhibit D hereto, between you and Genco and each officer and director of the Company relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date. The several obligations of the Underwriters to purchase Optional Shares hereunder are subject to the delivery to you on the applicable Option Closing Date of such documents as you may reasonably request with respect to the good standing of the Company, the due authorization and issuance of the Optional Shares to be sold on such Option Closing Date and other matters related to the issuance of such Optional Shares.
Appears in 1 contract
Samples: Underwriting Agreement (Kmart Corp)
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters are subject to the condition that all representations and warranties on the part of the Company and each Selling Stockholder contained in this Agreement are true and correct, the condition that the Company and each Selling Stockholder have performed their respective obligations required to be performed prior to the Closing Date and the following further conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date and each Option Closing Date, if any:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined for purposes of Section 15c3-1(c)(2)(vi)(F) under the Exchange Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the conditionassets, business, condition (financial or otherwise), management, operations or in the earnings, business or operations earnings of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus as of the date of this Agreement that, in your judgment, is material and adverse and that makes it, in your the Representatives’ judgment, impracticable or inadvisable to market offer or sell the Offered Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Underwriters shall have received on the Closing Date and each Option Closing Date, if any, a certificate, dated the Closing Date or such Option Closing Date, as the case may be, and signed by an executive officer the Chief Executive Officer and Chief Financial Officer of the Company, to the effect set forth in Section 5(a)(ithat (i) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and or such Option Closing Date, as the case may be; (ii) that the Company has complied in all material respects with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date or such Option Closing Date, as the case may be; and (iii) that no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings or examination for that purpose have been instituted or, to the knowledge of such officers, threatened, and as to such other matters as the Representatives may reasonably request. The delivery of the certificate provided for in this Section 6(b) shall constitute a representation and warranty of the Company as to the statements made in such certificate.
(c) The Underwriters shall have received on the Closing Date and each Option Closing Date, if any, a certificate, dated the Closing Date or such Option Closing Date, as the case may be, and signed by each Selling Stockholder, to the effect that the representations and warranties of such Selling Stockholder contained in this Agreement are true and correct as of the Closing Date or such Option Closing Date, as the case may be, and that such Selling Stockholder has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officer signing and delivering Date or such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an opinion and statement of Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP, outside counsel for the Company, dated the Option Closing Date, as the case may be, and as to such other matters as the effect set forth in Exhibit A heretoRepresentatives may reasonably request.
(d) The Underwriters shall have received on the Closing Date and each Option Closing Date, if any, an opinion of Xxxxxx King & Xxxxxxx P.CSpalding LLP, Xxxxxxxx Islands outside counsel for the Company, dated the Closing Date or such Option Closing Date, as the case may be, in form and substance reasonably satisfactory to counsel for the effect set forth in Exhibit B heretoUnderwriters.
(e) The Underwriters shall have received on the Closing Date and each Option Closing Date, if any, an opinion of Xxxxxx King & Xxxxxx Spalding LLP, special U.S. maritime environmental counsel and Liberian outside counsel for the CompanySelling Stockholders, dated the Closing Date or such Option Closing Date, as the case may be, in form and substance reasonably satisfactory to counsel for the effect set forth in Exhibit C heretoUnderwriters.
(f) The Underwriters shall have received on the Closing Date and each Option Closing Date, if any, an opinion and statement of Xxxxxx, Xxxxx & Xxxxxxx Proskauer Rose LLP, counsel for the Underwriters, dated the Closing Date or such Option Closing Date, with respect as the case may be, in form and substance satisfactory to such matters as may be requested by the Underwriters. In rendering such opinion, Proskauer Rose LLP 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 its subsidiaries and of public officials.
(g) The Underwriters shall have received, on each of the date hereof and hereof, the Closing Date and each Option Closing Date, if any, a letter dated the date hereof hereof, the Closing Date or the Option Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Deloitte & Touche BDO USA, LLP and Xxxxx Xxxxxxx LLP, independent public accountantsaddressed to the Underwriters and copied to each member of the Company’s board of directors who signed the Registration Statement at any time, 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, the Time of Sale Prospectus and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
(h) The Offered Shares Prospectus shall have been approved filed with the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for listing on such filing by the NYSErules and regulations under the Securities Act and in accordance with Section 7(b) hereof, and satisfactory evidence thereof any issuer free writing prospectus or other material required to be filed by the Company pursuant to Rule 433 under the Securities Act shall have been provided filed with the Commission within the applicable time period prescribed for such filing by Rule 433 under the Securities Act and in accordance with Section 7(b) hereof. No stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Time of Sale Prospectus or the Prospectus shall have been issued, and no proceedings for such purpose shall have been instituted or, to youthe knowledge of the Company, threatened by the Commission; no notice of objection of the Commission to the use of the Registration Statement shall have been received; and all requests for additional information on the part of the Commission shall have been complied with to the Representatives’ reasonable satisfaction. No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the Closing Date or each Option Closing Date, as the case may be, prevent the issuance or sale of the Shares; and no injunction, decree or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date or each Option Closing Date, as the case may be, prevent the issuance or sale of the Shares.
(i) FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(j) The “lock-up” agreements, each substantially in the form of Exhibit D A hereto, between you the Representatives and Genco the stockholders, officers and each officer and director directors of the Company listed in Exhibit B relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you the Representatives on or before the date hereof, shall be in full force and effect on the Closing Date.
(j) The Shares shall have been approved for listing on the Exchange, subject only to official notice of issuance. The several obligations of the Underwriters to purchase Optional Additional Shares hereunder are subject to the delivery to you the Representatives on the applicable Option Closing Date of such documents as you the Representatives may reasonably request with respect to the good standing request, including certificates of officers of the Company, the due authorization legal opinions and issuance of the Optional Shares to be sold on such Option Closing Date an accountants’ comfort letter, and other matters related to the issuance of such Optional Additional Shares.
Appears in 1 contract
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters are subject to the following further conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate no order suspending the direction effectiveness of the possible changeRegistration Statement shall be in effect, in and no proceeding for such purpose or pursuant to Section 8A under the rating accorded any Securities Act shall be pending before or, to the knowledge of the securities of Company, threatened by the Commission;
(ii) Neither the Company or nor any of its subsidiaries has any securities rated by any “nationally recognized statistical rating organization,” as such term is defined for purposes in Section 3(a)(62) of Section 15c3-1(c)(2)(vi)(F) under the Exchange Act; and
(iiiii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus as of the date of this Agreement that, in your the Representative’s judgment, is material and adverse and that makes it, in your the Representative’s judgment, impracticable to market the Offered Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Underwriters shall have received on the Closing Date (i) a certificate, dated the Closing Date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(iSections 6(a)(i) and 6(a)(ii) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date and (ii) a certificate of the Selling Shareholders, dated the Closing Date and signed by an authorized officer of each Selling Shareholder, to the effect set forth in Sections 6(a)(i) and 6(a)(ii) above and to the effect that the representations and warranties of the Selling Shareholders contained in this Agreement are true and correct as of the Closing Date and that the Selling Shareholders have complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officer signing and delivering any such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an opinion and statement negative assurance letter of Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx Xxxxx LLP, outside counsel for the Company, dated the Closing Date, in form and substance reasonably satisfactory to the effect set forth in Exhibit A heretoRepresentative.
(d) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx (i) Xxxxxxxx & Xxxxx LLP with respect to Cypress Investor Holdings, L.P. and GPE VIII CCC Co-Investment (Delaware) Limited Partnership, (ii) Bonn Xxxxxxxx & Partners S.C.S with respect to Advent International GPE VIII-C Limited Partnership, and (iii) Xxxx, Xxxxx, Rifkind, Xxxxxxx P.C& Xxxxxxxx LLP with respect to OH Cypress Aggregator, Xxxxxxxx Islands counsel for the CompanyL.P., each dated the Closing Date, in form and substance reasonably satisfactory to the effect set forth in Exhibit B heretoRepresentative.
(e) The Underwriters shall have received on the Closing Date an opinion and negative assurance letter of Xxxxxx Xxxxx Xxxx & Xxxxxx LLP, special U.S. maritime environmental counsel and Liberian counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit C hereto.
(f) The Underwriters shall have received on the Closing Date an opinion and statement of Xxxxxx, Xxxxx & Xxxxxxx Xxxxxxxx LLP, counsel for the Underwriters, dated the Closing Date, with respect to such matters as the Underwriters may be requested by the Underwritersreasonably request, and such counsel shall have received such documents and information as they may reasonably request to enable them to pass upon such matters.
(gf) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Deloitte & Touche LLP, independent public accountants, 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, the Time of Sale Prospectus and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
(hg) The Offered Shares shall have been approved for listing on Lock-up Agreements between the NYSERepresentative, the Selling Shareholders and satisfactory evidence thereof shall have been provided to you.
(i) FINRA shall have raised no objection to the fairness executive officers and reasonableness of the underwriting terms and arrangements.
(j) The “lock-up” agreements, each substantially in the form of Exhibit D hereto, between you and Genco and each officer and director directors of the Company relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date. The several obligations of the Underwriters to purchase Optional Shares hereunder are subject to the delivery to you on the applicable Option Closing Date of such documents as you may reasonably request with respect to the good standing of the Company, the due authorization and issuance of the Optional Shares to be sold on such Option Closing Date and other matters related to the issuance of such Optional Shares.
Appears in 1 contract
Samples: Underwriting Agreement (CCC Intelligent Solutions Holdings Inc.)
Conditions to the Underwriters’ Obligations. The obligations of the Sellers to sell the Shares to the Underwriters and the several obligations of the Underwriters to purchase and pay for the Shares on the Closing Date are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
Date (i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate no order suspending the direction effectiveness of the possible changeRegistration Statement shall be in effect, in the rating accorded any of the securities of the Company and no proceeding for such purpose or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined for purposes of pursuant to Section 15c3-1(c)(2)(vi)(F) 8A under the Exchange Act; and
Securities Act shall be pending before or threatened by the Commission and (ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus as of the date of this Agreement that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Offered Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Underwriters shall have received on the Closing Date Date: |US-DOCS\140511620.6||
(i) a certificate, dated the Closing Date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i6(a) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date; and
(ii) a certificate, dated the Closing date and signed by the Selling Shareholder, to the effect that the representations and warranties of the Selling Shareholder contained in this Agreement are true and correct as of the Closing Date and that the Selling Shareholder has complied with all of the agreements and satisfied all of the conditions on the Selling Shareholder’s part to be performed or satisfied hereunder on or before the Closing Date. The officer signing and delivering such certificate on behalf of the Company may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an opinion and statement a negative assurance letter of Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP, outside counsel for the Company, dated the Closing Date, in form and substance reasonably satisfactory to the effect set forth in Exhibit A heretoRepresentatives, together with signed or reproduced copies of such letter for each of the other Underwriters.
(d) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxxx P.CLLP, Xxxxxxxx Islands outside counsel for the CompanySelling Shareholder, dated the Closing Date, in form and substance reasonably satisfactory to the effect set forth in Exhibit B heretoRepresentatives, together with signed or reproduced copies of such letter for each of the other Underwriters.
(e) The Underwriters shall have received on the Closing Date an opinion opinion, dated the Closing Date of Xxxxxx & (x) Xxxx Xxxxx LLP, intellectual property counsel for the Company and (y) Xxxxxx LLP, special U.S. maritime environmental counsel and Liberian regulatory counsel for the Company, dated the Closing Datein each case, in form and substance reasonably satisfactory to the effect set forth in Exhibit C heretoRepresentatives, together with signed or reproduced copies of such letter for each of the other Underwriters.
(f) The Underwriters shall have received on the Closing Date an opinion and statement negative assurances letter of Xxxxxx, Xxxxx Xxxxxx & Xxxxxxx LLP, counsel for the Underwriters, dated the Closing Date, with respect to such matters as may be requested by in the Underwritersform mutually agreed upon between the Underwriters and Xxxxxx & Xxxxxxx LLP.
(g) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance reasonably satisfactory to the UnderwritersRepresentatives, from Deloitte & Touche PricewaterhouseCoopers LLP, independent registered public accountantsaccounting firm, 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, the Time of Sale Prospectus and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
(h) The Offered Shares shall have been approved for listing on the NYSE, and satisfactory evidence thereof shall have been provided to you.
(i) FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(j) The “lock-up” agreements, each substantially in the form of Exhibit D A hereto, between you and Genco certain stockholders, officers and each officer and director directors of the Company relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date. 18 |US-DOCS\140511620.6||
(i) On the Closing Date, the Shares shall have been approved for listing on the Nasdaq Global Market, subject only to official notice of issuance.
(j) FINRA has confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements relating to the offering of the Shares.
(k) The Underwriters shall have received, on each of the date hereof and the Closing Date, a certificate dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Representatives, from the Chief Financial Officer of the Company.
(l) The several obligations of the Underwriters to purchase Optional Additional Shares hereunder are subject to the delivery to you on the applicable Option Closing Date of the following:
(i) a certificate, dated the Option Closing Date and signed by an executive officer of the Company, confirming that the certificate delivered on the Closing Date pursuant to Section 6(b)(i) hereof remains true and correct as of such Option Closing Date;
(ii) an opinion and negative assurance letter of Xxxxxx LLP, outside counsel for the Company, dated the Option Closing Date, relating to the Additional Shares to be purchased on such Option Closing Date and otherwise to the same effect as the opinion and negative assurance letter required by Section 6(c) hereof;
(iii) an opinion, dated the Closing Date of (x) Xxxx Xxxxx XXX, intellectual property counsel for the Company and (y) Xxxxxx LLP, regulatory counsel for the Company, in each case, relating to the Additional Shares to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(e) hereof;
(iv) an opinion and negative assurance letter of Xxxxxx & Xxxxxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Additional Shares to be purchased on such Option Closing Date and otherwise to the same effect as the opinion and negative assurance letter required by Section 6(f) hereof;
(v) a letter dated the Option Closing Date, in form and substance reasonably satisfactory to the Representatives, from PricewaterhouseCoopers LLP, independent registered public accountants, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(g) hereof; provided that the letter delivered on the Option Closing Date shall use a “cut-off date” not earlier than two business days prior to such Option Closing Date; and
(vi) a certificate dated the Option Closing Date, in form and substance satisfactory to the Representatives, from the Chief Financial Officer of the Company.
(m) Such other documents as you may reasonably request with respect to the good standing of the Company, the due authorization and issuance of the Optional Additional Shares to be sold on such Option Closing Date and other matters related to the issuance of such Optional SharesAdditional Shares shall have been delivered to you. With respect to Sections 6(c) and 6(l)(ii) above, Xxxxxx LLP, and with respect to Sections 6(f) and 6(l)(iv) above, Xxxxxx & Xxxxxxx LLP may state that their opinions and beliefs are |US-DOCS\140511620.6|| based upon their participation in the preparation of the Registration Statement, the Time of Sale Prospectus and the Prospectus and any amendments or supplements thereto and review and discussion of the contents thereof, but are without independent check or verification, except as specified.
Appears in 1 contract
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of (A) any intended or potential downgrading or of (B) any review for a or possible change that does not indicate the direction of the possible change, change in the rating accorded any of the securities of or guaranteed by the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” (as such term is defined for purposes in Section 3(a)(62) of Section 15c3-1(c)(2)(vi)(F) under the Exchange Act); and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus as of the date of this Agreement that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Offered Shares Securities on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by Xxxxxxx Xxxxxx, Vice President and Treasurer of the Company, or by an executive officer of the Company, to the effect set forth in Section 5(a)(i) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an opinion and statement of Xxxxxx Xxxxx Xxxxxx, Xxxx & Xxxxxxxx & Xxxxxxx LLP, outside counsel for the Company, dated the Closing Date, to in the effect set forth in Exhibit A heretoform agreed between such counsel and the Managers.
(d) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx Xxxxx Xxxx & Xxxxxxx P.C, Xxxxxxxx Islands counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit B hereto.
(e) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxx LLP, special U.S. maritime environmental counsel and Liberian counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit C hereto.
(f) The Underwriters shall have received on the Closing Date an opinion and statement of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel for the Underwriters, dated the Closing Date, Date with respect to such matters as may be requested by the UnderwritersUnderwriters shall request.
(ge) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Deloitte Xxxxx & Touche Young LLP, independent public accountants, 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, the Time of Sale Prospectus and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
(h) The Offered Shares shall have been approved for listing on the NYSE, and satisfactory evidence thereof shall have been provided to you.
(i) FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(j) The “lock-up” agreements, each substantially in the form of Exhibit D hereto, between you and Genco and each officer and director of the Company relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date. The several obligations of the Underwriters to purchase Optional Shares hereunder are subject to the delivery to you on the applicable Option Closing Date of such documents as you may reasonably request with respect to the good standing of the Company, the due authorization and issuance of the Optional Shares to be sold on such Option Closing Date and other matters related to the issuance of such Optional Shares.
Appears in 1 contract
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Company or any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined for purposes of Section 15c3-1(c)(2)(vi)(FRule 436(g)(2) under the Exchange Securities Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus as of the date of this Agreement that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Offered Shares Securities on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an opinion and statement of Xxxxxx Xxxxx Xxxx & Xxxxxxxx & Xxxxxxx LLP, outside counsel for the Company, dated the Closing Date, in form and substance to the effect set forth in Exhibit A hereto.Annex A.
(d) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxxx P.C, Xxxxxxxx Islands counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit B hereto.
(e) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxx LLP, special U.S. maritime environmental counsel and Liberian counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit C hereto.
(f) The Underwriters shall have received on the Closing Date an opinion and statement of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel for the Underwriters, dated the Closing Date, with covering the matters referred to in paragraphs (iii), (iv) , (v) and the second to last paragraph of Annex A (but only as to the statements in each of the Time of Sale Prospectus and the Prospectus under “Description of Debt Securities,” “Description of the Notes” insofar as relevant to the offering of the Securities and “Underwriters”) and clauses (B)(1), (B)(2), and (B)(3) of the last paragraph of Annex A. With respect to such matters the last paragraph of Annex A, counsel for the Company may state that their opinions and beliefs are based upon their participation in the preparation of the Registration Statement, the Time of Sale Prospectus, the Prospectus and any amendments or supplements thereto and review and discussion of the contents thereof, but are without independent check or verification, except as specified. With respect to clauses (B)(1), (B)(2) and (B)(3) of the last paragraph of Annex A, Xxxxxx & Xxxxxxx LLP may state that their opinions and beliefs are based upon their participation in the preparation of the Registration Statement, the Prospectus, the free writing prospectuses identified as part of the Time of Sale Prospectus in Schedule I hereto, the prospectus supplement and any amendments or supplements thereto (other than the documents incorporated by reference) and upon review and discussion of the contents of the Registration Statement, the Time of Sale Prospectus and the Prospectus (including documents incorporated by reference), but are without independent check or verification, except as specified. The opinion of counsel for the Company described in Section 5(c) above shall be requested by rendered to the UnderwritersUnderwriters at the request of the Company and shall so state therein.
(ge) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Deloitte & Touche PricewaterhouseCoopers LLP, independent public accountants, 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, the Time of Sale Prospectus and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
(h) The Offered Shares shall have been approved for listing on the NYSE, and satisfactory evidence thereof shall have been provided to you.
(i) FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(j) The “lock-up” agreements, each substantially in the form of Exhibit D hereto, between you and Genco and each officer and director of the Company relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date. The several obligations of the Underwriters to purchase Optional Shares hereunder are subject to the delivery to you on the applicable Option Closing Date of such documents as you may reasonably request with respect to the good standing of the Company, the due authorization and issuance of the Optional Shares to be sold on such Option Closing Date and other matters related to the issuance of such Optional Shares.
Appears in 1 contract
Conditions to the Underwriters’ Obligations. The obligation of the Selling Shareholder to sell the Shares to the Underwriters and the several obligations of the Underwriters to purchase and pay for the Shares on the Closing Date are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
, (i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate no order suspending the direction effectiveness of the possible changeRegistration Statement shall be in effect, in the rating accorded any of the securities of the Company and no proceeding for such purpose or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined for purposes of pursuant to Section 15c3-1(c)(2)(vi)(F) 8A under the Exchange Act; and
Securities Act shall be pending before or threatened by the Commission and (ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus as of the date of this Agreement that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Offered Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Underwriters shall have received on the Closing Date Date, a certificate, dated the Closing Date Date, and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i6(a) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date Date, and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date Date, an opinion and statement negative assurance letter of Xxxxxx Xxxxx Xxxxxxxx Axxxx & Xxxxxxx Overy LLP, outside counsel for the Company, each dated the Closing Date, in form and substance reasonably satisfactory to the effect set forth in Exhibit A heretoUnderwriters.
(d) The Underwriters shall have received on the Closing Date Date, an opinion from each of Xxxxxx Kxxxxxxx & Xxxxxxx P.CExxxx International LLP (“Kxxxxxxx & Exxxx”) and Elvinger Hoss Prussen, Xxxxxxxx Islands société anonyme (“Elvinger”), each counsel for the CompanySelling Shareholder, each dated the Closing Date, in form and substance reasonably satisfactory to the effect set forth Underwriters. With respect to this Section 6(d), Kxxxxxxx & Exxxx may rely upon the opinion of Elvinger and, with respect to factual matters, upon the representations of the Selling Shareholder contained herein and in Exhibit B heretoother documents and instruments.
(e) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxx LLP, special U.S. maritime environmental counsel and Liberian counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit C hereto.
(f) The Underwriters shall have received on the Closing Date an opinion and statement negative assurance letter of Xxxxxx, Xxxxx Lxxxxx & Xxxxxxx Wxxxxxx LLP, counsel for the Underwriters, dated the Closing Date, with respect in form and substance reasonably satisfactory to them and such matters counsel shall have received such papers and information as they may be requested by the Underwritersreasonably request to enable them to pass upon such matters.
(gf) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Deloitte each of (i) Ernst & Touche Young LLP, independent public accountantsaccountants with respect to the Company and (ii) KPMG, independent public accountants with respect to Mobile Mini, in each case containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements, pro forma financial statements (with respect to the comfort letter provided by Ernst & Young LLP) and certain financial information contained in the Registration Statement, the Time of Sale Prospectus and the Prospectus; provided that the each letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
(h) The Offered Shares shall have been approved for listing on the NYSE, and satisfactory evidence thereof shall have been provided to you.
(i) FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(jg) The “lock-up” agreements, each substantially in the form of Exhibit D A hereto, between you and Genco the Selling Shareholder, or the officers and each officer and director directors of the Company relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date.
(h) At the time of execution of this Agreement, the Underwriters shall have received from the Chief Financial Officer of the Company a certificate, in substantially the form set forth on Exhibit B hereto (the “Initial CFO Certificate”). At the Closing Date, the Underwriters shall have received from the Chief Financial Officer of the Company a certificate (the “Bring-Down CFO Certificate”) (i) stating, as of the date of the Bring-Down CFO Certificate (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Time of Sale Prospectus, as of a date not more than three days prior to the date of the Bring-Down CFO Certificate), the conclusions and findings of the Chief Financial Officer with respect to the financial information and other matters covered by the Initial CFO Certificate and (ii) confirming in all material respects the conclusions and findings set forth in the Initial CFO Certificate.
(i) FINRA has confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements relating to the offering of the Shares.
(j) There shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization”, as such term is defined in Section 3(a)(62) of the Exchange Act.
(k) The several obligations of the Underwriters to purchase Optional Additional Shares hereunder are subject to the delivery to you on the applicable Option Closing Date of the following:
(i) a certificate, dated the Option Closing Date and signed by an executive officer of the Company, confirming that the certificate delivered on the Closing Date pursuant to Section 5(b) hereof remains true and correct as of such Option Closing Date;
(ii) an opinion and negative assurance letter of Axxxx & Oxxxx LLP, outside counsel for the Company, dated the Option Closing Date, relating to the Additional Shares to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 5(c) hereof;
(iii) an opinion from each of Kxxxxxxx & Exxxx and Elvinger, each counsel for the Selling Shareholder, each dated the Option Closing Date, relating to the Additional Shares to be purchased on such Option Closing Date and otherwise to the same effect as the opinions required by Section 5(d) hereof;
(iv) an opinion and negative assurance letter of Lxxxxx & Wxxxxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Additional Shares to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 5(e) hereof;
(v) a letter dated the Option Closing Date, in form and substance satisfactory to the Underwriters, from each of (i) Ernst & Young LLP, independent public accountants with respect to the Company and (ii) KPMG, independent public accountants with respect to Mobile Mini, in each case substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 5(f) hereof; provided that each letter delivered on the Option Closing Date shall use a “cut-off date” not earlier than three business days prior to such Option Closing Date;
(vi) a Bring-Down CFO Certificate, dated the Option Closing Date, (i) stating, as of the date of the Bring-Down CFO Certificate (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Time of Sale Prospectus, as of a date not more than three days prior to the date of the Bring-Down CFO Certificate), the conclusions and findings of the Chief Financial Officer with respect to the financial information and other matters covered by the Initial CFO Certificate and (ii) confirming in all material respects the conclusions and findings set forth in the Initial CFO Certificate; and
(vii) such other documents as you may reasonably request with respect to the good standing of the Company, the due authorization and issuance of the Optional Additional Shares to be sold on such Option Closing Date and other matters related to the issuance of such Optional Additional Shares.
Appears in 1 contract
Samples: Underwriting Agreement (WillScot Mobile Mini Holdings Corp.)
Conditions to the Underwriters’ Obligations. The obligation of the Company to sell the Securities to the Underwriters and the several obligations of the Underwriters to purchase and pay for the Securities are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible changedowngrading, in the rating accorded any of the Company’s securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined for purposes of Section 15c3-1(c)(2)(vi)(FRule 436(g)(2) under the Exchange Securities Act; and;
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Registration Statement, the Prospectus as of or the date of this Agreement General Disclosure Package that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Offered Shares Securities on the terms and in the manner contemplated in the Time Prospectus; and
(iii) the Registration Statement shall have become effective under the Securities Act and no stop order suspending the effectiveness of Sale Prospectusthe Registration Statement shall have been issued under the Securities Act and no proceedings therefor shall have been initiated or threatened by the Commission.
(b) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(iclause (a)(i) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and that the Company has complied in all material respects with all of the agreements and satisfied in all material respects all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The Date (the officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened).
(c) The Underwriters shall have received on the Closing Date an opinion and statement of Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP, outside special counsel for the Company, shall have furnished to you their written opinion dated the Closing Date, in form and substance satisfactory to the effect set forth in Exhibit A hereto.
(d) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxxx P.C, Xxxxxxxx Islands counsel for the Company, dated the Closing Dateyou, to the effect set forth that:
(i) The Company has been duly incorporated under the General Corporation Law of the State of Delaware, with corporate power and authority to own, lease and operate its properties and to conduct its business as described in Exhibit B heretothe Registration Statement, the General Disclosure Package and the Prospectus. Based on certificates from public officials, such firm shall confirm that the Company is validly existing and in good standing under the laws of the State of Delaware.
(eii) The Underwriters shall execution, delivery and performance of this Agreement have received on the Closing Date an opinion been duly authorized by all necessary corporate action of Xxxxxx & Xxxxxx LLP, special U.S. maritime environmental counsel and Liberian counsel for the Company, dated and this Agreement has been duly executed and delivered by the Closing Date, to the effect set forth in Exhibit C heretoCompany.
(fiii) The Underwriters shall Indenture (a) has been qualified under the Trust Indenture Act of 1939, as amended, (b) has been duly authorized by all necessary corporate action of the Company and duly executed and delivered by the Company and (c) is the legally valid and binding agreement of the Company, enforceable against the Company in accordance with its terms.
(iv) The Securities have received on been duly authorized by all necessary corporate action of the Closing Date an opinion Company, have been duly executed by the Company, and statement when duly issued and authenticated in accordance with the terms of Xxxxxxthe Indenture and delivered to and paid for by you in accordance with the terms of this Agreement, Xxxxx & Xxxxxxx LLPthe Securities will be legally valid and binding obligations of the Company, counsel for enforceable against the UnderwritersCompany in accordance with their terms.
(v) The Registration Statement has become effective under the Securities Act. To the best of such firm’s knowledge, dated no stop order suspending the Closing Dateeffectiveness of the Registration Statement has been issued under the Securities Act and no proceedings therefor have been initiated by the Commission. Any required filing of any preliminary prospectus relating to the Securities and the Prospectus pursuant to Rule 424 under the Securities Act has been made in accordance with Rule 424 under the Securities Act (without reference to Rule 424(b)(8)). Any required filing of each Issuer Free Writing Prospectus pursuant to Rule 433 has been made in the manner and within the time period required by Rule 433(d).
(vi) The Registration Statement (including, without limitation, the Rule 430B information), as of the date it was declared effective (including without limitation each deemed effective date with respect to the Underwriters pursuant to Rule 430B(f)(2) of the Securities Act Regulations), and the Prospectus, as of the date of the Prospectus Supplement, appeared on their face to be appropriately responsive in all material respects with the requirements for registration statements on Form S-3 under the Securities Act and the Securities Act Regulations; it being understood, however, that such matters as firm need express no opinion with respect to Regulation S-T or the financial statements, schedules or other financial data included in, incorporated by reference in or omitted from the Registration Statement or the Prospectus or with respect to the Statement of Eligibility of the Trustee on Form T-1 (the “Form T-1”). For purposes of this paragraph, such firm may be requested by have assumed that the Underwritersstatements made in the Registration Statement and the Prospectus, are correct and complete.
(gvii) The Underwriters shall have received, Securities and the Indenture conform in all material respects to the descriptions thereof in the General Disclosure Package and the Prospectus under the captions “Description of the Notes” and “Description of Debt Securities,” in each case insofar as such statements are summaries of legal matters.
(viii) The issue and sale of the Securities being delivered on each of the date hereof by the Company and the Closing Date, a letter dated compliance by the Company with the provisions of this Agreement and the Indenture on the date hereof do not:
(1) violate the Company’s Governing Documents; or
(2) result in the breach of or a default under any of the indentures relating to the Company’s 4.125% Notes due 2008, 5.80% Notes due 2012, 4.80% Notes due 2007, 6.50% Notes due 2011, 7.25% Debentures due 2031, 7.50% Notes due 2009, 4.950% Notes due 2010, 5.625% Notes due 2014, 9.30% Senior Secured Debentures due 2007, 9.875% Senior Subordinated Debentures due 2007, 7.00% Senior Notes due 2007, 4.45% Senior Notes due 2008, 6.50% Notes due 2008 or 7.45% Senior Debentures due 2027 or the Closing DateCredit Agreement dated as of June 1, 2005 among the Company and Canada Safeway Limited, as borrowers, and a consortium of banks led by Banc of America Securities LLC and X.X. Xxxxxx Securities Inc., as joint lead arrangers, as amended; or
(3) violate any federal, New York or California statute, rule or regulation applicable to the Company; or
(4) require any consents, approvals or authorizations to be obtained by the Company, or any, registrations, declarations or filings to be made by the Company, in each case under any federal, New York or California statute, rule or regulation applicable to the Company that have not been obtained or made.
(ix) Each of the Incorporated Documents, as of its respective filing or effective date, appeared on its face to be appropriately responsive in all material respects with the applicable requirements for reports on Forms 10-K, 10-Q and 8-K and proxy statements under Regulation 14A, as the case may be, in form under the Exchange Act, and substance satisfactory the rules and regulations of the Commission thereunder, and for Registration Statements on Form 8-A under the Exchange Act and the rules and regulations of the Commission thereunder applicable to the Underwritersportion incorporated; it being understood, however, that such firm need express no opinion with respect to Regulation S-T or the financial statements, schedules or other financial data included in, incorporated by reference in, or omitted from Deloitte & Touche LLPsuch reports, independent public accountants, containing proxy statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters registration statements or with respect to the financial Form T-1. In passing upon the compliance as to form of the Incorporated Documents, such firm may assume that the statements made therein are correct and certain financial information contained complete. “Incorporated Documents” means the reports and proxy and registration statements filed by the Company with the Commission and incorporated or deemed to be incorporated by reference in the Registration Statement, the Time of Sale Prospectus and Statement or the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
(h) The Offered Shares shall have been approved for listing on the NYSE, and satisfactory evidence thereof shall have been provided to you.
(i) FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(j) The “lock-up” agreements, each substantially in the form of Exhibit D hereto, between you and Genco and each officer and director of the Company relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date. The several obligations of the Underwriters to purchase Optional Shares hereunder are subject to the delivery to you on the applicable Option Closing Date of such documents as you may reasonably request with respect to the good standing of the Company, the due authorization and issuance of the Optional Shares to be sold on such Option Closing Date and other matters related to the issuance of such Optional Shares.
Appears in 1 contract
Samples: Underwriting Agreement (Safeway Inc)
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgradingdowngrading of the Company by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act (“NRSRO”), nor shall any notice public announcement have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined for purposes of Section 15c3-1(c)(2)(vi)(F) under the Exchange ActNRSRO; and
(ii) there shall not have occurred any change, or any development involving a prospective change, material adverse change in the financial condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus as (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Offered Shares on the terms and in the manner contemplated in the Time of Sale ProspectusAgreement).
(b) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an opinion and statement letter of Weil, Gotshal & Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP, outside U.S. counsel for the Company, each dated the Closing Date, to substantially in the effect form set forth in Exhibit A heretoExhibits A-1 and A-2.
(d) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx Xxxxxxxxx & Xxxxxxx P.CLLP, Xxxxxxxx Islands special U.S. regulatory counsel for the Company, dated the Closing Date, to substantially in the effect form set forth in Exhibit B heretoB. The opinions of Weil, Gotshal & Xxxxxx LLP and Xxxxxxxxx & Xxxxxxx LLP described in Sections 5(c) and 5(d) above shall be rendered to the Underwriters at the request of the Company and shall so state therein.
(e) The Underwriters shall have received on the Closing Date an opinion and letter of Xxxxxx Xxxxx Xxxx & Xxxxxx LLP, special U.S. maritime environmental counsel and Liberian counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit C hereto.
(f) The Underwriters shall have received on the Closing Date an opinion and statement of Xxxxxx, Xxxxx & Xxxxxxx Xxxxxxxx LLP, counsel for the Underwriters, each dated the Closing Date, with respect to such matters as may be requested by the UnderwritersUnderwriters shall reasonably request.
(f) The Underwriters shall have received executed copies of the Base Indenture and the Third Supplemental Indenture.
(g) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Deloitte & Touche KPMG LLP, an independent registered public accountantsaccounting firm, 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, the Time of Sale Prospectus and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
(h) The Offered Shares Underwriters shall have been approved for listing received, on each of the NYSEdate hereof and the Closing Date, a certificate, dated the date hereof or the Closing Date, as the case may be, and satisfactory evidence thereof shall have been provided to you.
(i) FINRA shall have raised no objection to signed by the fairness and reasonableness Chief Financial Officer of the underwriting terms and arrangements.
(j) The “lock-up” agreementsCompany, each substantially in the form of set forth in Exhibit D hereto, between you and Genco and each officer and director of the Company relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date. The several obligations of the Underwriters to purchase Optional Shares hereunder are subject to the delivery to you on the applicable Option Closing Date of such documents as you may reasonably request with respect to the good standing of the Company, the due authorization and issuance of the Optional Shares to be sold on such Option Closing Date and other matters related to the issuance of such Optional Shares.D.
Appears in 1 contract
Conditions to the Underwriters’ Obligations. The obligations of the Sellers to sell the Shares to the Underwriters and the several obligations of the Underwriters to purchase and pay for the Shares on the Closing Date are subject to the condition that the Registration Statement shall have become effective not later than 5:30 pm (New York City time) on the date hereof. The several obligations of the Underwriters are subject to the following further conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company's securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined for purposes of Section 15c3-1(c)(2)(vi)(FRule 436(g)(2) under the Exchange Securities Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a wholeWellCare Group, from that set forth in the Time of Sale Prospectus as (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement Agreement) that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Offered Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i6(a)(i) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and that Date, the Company has complied in all material respects with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date, 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. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an opinion and statement of Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLPL.L.P., outside counsel for the Company, Company and counsel for the Management Selling Shareholders dated the Closing Date, in a form reasonably acceptable to the effect set forth in Underwriters, which shall be attached as Exhibit A hereto.
(d) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxxx P.C, Xxxxxxxx Islands counsel General Counsel for the Company, dated the Closing Date, in a form reasonably acceptable to the effect set forth in Underwriters, which shall be attached as Exhibit B hereto.
(e) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx Xxxxxxxx & Xxxxxx Xxxxx LLP, special U.S. maritime environmental counsel and Liberian counsel for the CompanyTBI, dated the Closing Date, to substantially in the effect set forth in form attached as Exhibit C hereto.
(f) The Underwriters shall have received on the Closing Date an opinion and statement of Xxxxxx, Xxxxx Ropes & Xxxxxxx Xxxx LLP, counsel for the Underwriters, dated the Closing Date, with respect to such matters substantially in the form attached as may be requested by the UnderwritersExhibit D hereto.
(g) With respect to Section 6(e) above, Xxxxxxxx & Xxxxx LLP may rely upon an opinion or opinions of other counsel for any Selling Shareholder and, with respect to factual matters and to the extent such counsel deems appropriate, upon the representations of each Selling Shareholder contained herein and in the Custody Agreement and Power of Attorney of such Selling Shareholder, as applicable, and in other documents and instruments; provided that (A) each such counsel for the Selling Shareholders is satisfactory to your counsel, (B) a copy of each opinion so relied upon is delivered to you and is in form and substance satisfactory to your counsel, (C) copies of such Custody Agreements and Powers of Attorney and of any such other documents and instruments shall be delivered to you and shall be in form and substance satisfactory to your counsel and (D) Xxxxxxxx & Xxxxx LLP shall state in their opinion that they are justified in relying on each such other opinion. With respect to Section 6(c) above, Xxxxx & Xxxxxxx L.L.P. may rely, with respect to factual matters and to the extent such counsel deems appropriate, upon the representations of the Company and the Management Selling Shareholders contained herein and in the Custody Agreement and Power of Attorney of such Management Selling Shareholder; provided that copies of such other documents and instruments shall be delivered to you and shall be in form and substance satisfactory to your counsel. The opinions of Xxxxx & Xxxxxxx L.L.P., General Counsel for the Company and Xxxxxxxx & Xxxxx LLP described in Sections 6(c), 6(d) and 6(e) above shall be rendered to the Underwriters at the request of the Company or one or more of the Selling Shareholders, as the case may be, and shall so state therein.
(h) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Deloitte & Touche LLP, independent public accountants, 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, the Time of Sale Prospectus and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
(h) The Offered Shares shall have been approved for listing on the NYSE, and satisfactory evidence thereof shall have been provided to you.
(i) FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(j) The “lock-up” agreements, each substantially in the form of Exhibit D heretoE hereto except as you may otherwise agree, between you and Genco certain shareholders, officers and each officer and director directors of the Company relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date.
(j) The Shares shall have been approved for listing on the NYSE, subject only to official notice of issuance. The several obligations of the Underwriters to purchase Optional Additional Shares hereunder are subject to the delivery to you on the applicable Option Closing Date of such documents as you may reasonably request with respect to the good standing of the Company, Company and the due authorization and issuance of the Optional Additional Shares to be sold on such Option Closing Date and other matters related to the issuance of such Optional Additional Shares.
Appears in 1 contract
Samples: Underwriting Agreement (Wellcare Health Plans, Inc.)
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters are subject to the following conditions:
(a) Subsequent to the execution and delivery of this the Underwriting Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined for purposes of Section 15c3-1(c)(2)(vi)(FRule 436(g)(2) under the Exchange Securities Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time Prospectus (exclusive of Sale Prospectus as of any amendments or supplements thereto subsequent to the date of this Agreement Agreement) that, in your judgmentthe judgment of the Manager, is material and adverse and that makes it, in your judgmentthe judgment of the Manager, impracticable to market proceed with the offer, sale or delivery of the Offered Shares Securities on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i4(a)(i) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(i) The Underwriters shall have received on the Closing Date an opinion of Pxxxxxx Coie LLP, outside counsel for the Company, dated the Closing Date, in the form attached hereto as Exhibit A.
(c) The Underwriters shall have received on the Closing Date an opinion and statement of Xxxxxx Xxxxx Xxxxxxxx Skadden, Arps, Slate, Mxxxxxx & Xxxxxxx Fxxx LLP, outside special counsel for the CompanyUnderwriters, dated the Closing Date, in form and substance satisfactory to the effect set forth Underwriters. With respect to the last paragraph of Exhibit A, Pxxxxxx Coie LLP may state that their opinion and belief are based upon their participation in Exhibit A heretothe preparation of the Registration Statement and Prospectus and any amendments or supplements thereto and documents incorporated therein by reference and review and discussion of the contents thereof, but are without independent check or verification, except as specified. The opinion of Pxxxxxx Coie LLP described in Section 4(c) above shall be rendered to the Underwriters at the request of the Company and shall so state therein.
(d) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxxx P.C, Xxxxxxxx Islands counsel for the Companya letter, dated the Closing Date, to the effect set forth in Exhibit B hereto.
(e) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxx LLP, special U.S. maritime environmental counsel and Liberian counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit C hereto.
(f) The Underwriters shall have received on the Closing Date an opinion and statement of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel for the Underwriters, dated the Closing Date, with respect to such matters as may be requested by the Underwriters.
(g) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Deloitte & Touche LLP, the Company’s independent public accountants, 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, the Time of Sale Prospectus and or incorporated by reference into the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
(h) The Offered Shares shall have been approved for listing on the NYSE, and satisfactory evidence thereof shall have been provided to you.
(i) FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(j) The “lock-up” agreements, each substantially in the form of Exhibit D hereto, between you and Genco and each officer and director of the Company relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date. The several obligations of the Underwriters to purchase Optional Shares hereunder are subject to the delivery to you on the applicable Option Closing Date of such documents as you may reasonably request with respect to the good standing of the Company, the due authorization and issuance of the Optional Shares to be sold on such Option Closing Date and other matters related to the issuance of such Optional Shares.
Appears in 1 contract
Conditions to the Underwriters’ Obligations. The obligations of the Company to sell the Shares to the Underwriters and the several obligations of the Underwriters to purchase and pay for the Shares on the Closing Date and the Option Closing Date, as the case may be, are subject to the condition that the Registration Statement shall have become effective not later than [_____] (New York City time) on the date hereof. The several obligations of the Underwriters are subject to the following further conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company's securities of the Company or any of its subsidiaries by any “"nationally recognized statistical rating organization,” " as such term is defined for purposes of Section 15c3-1(c)(2)(vi)(FRule 436(g)(2) under the Exchange Securities Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time Prospectus (exclusive of Sale Prospectus as of any amendments or supplements thereto subsequent to the date of this Agreement Agreement) that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Offered Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an opinion and statement of Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLPCoie llp, outside counsel for to the Company, dated the Closing Date, to the effect set forth in Exhibit A hereto.that:
(di) The Underwriters shall the Company has been duly incorporated, is validly existing as a corporation under the laws of the State of Washington, has the corporate power and authority to own its property and to conduct its business as described in the Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have received a material adverse effect on the Closing Date an opinion Company and its subsidiaries, taken as a whole;
(ii) each corporate subsidiary of Xxxxxx & Xxxxxxx P.Cthe Company has been duly incorporated, Xxxxxxxx Islands counsel for is validly existing as a corporation under the laws of the jurisdiction of its incorporation, has the corporate power and authority to own its property and to conduct its business as described in the Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the Company and its subsidiaries, taken as a whole;
(iii) I-Balls LLC, a subsidiary of the Company ("I-Balls LLC"), has been duly organized, is validly existing as a limited liability company in good standing under the laws of the jurisdiction of its formation, has the power and authority to own its property and to conduct its business as described in the Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the Company and its subsidiaries, taken as a whole;
(iv) the authorized capital stock of the Company conforms as to legal matters to the description thereof contained in the Prospectus under the caption "Description of Capital Stock";
(v) the shares of Common Stock outstanding prior to the issuance of the Shares have been duly authorized and are validly issued, non- assessable and, to such counsel's knowledge, fully paid;
(vi) all of the issued shares of capital stock of each corporate subsidiary of the Company and all of the issued membership interests of I-Balls LLC have been duly and validly authorized and issued, are fully paid and non-assessable and are owned directly by the Company, dated free and clear of all liens, encumbrances, equities or claims;
(vii) the Closing DateShares have been duly authorized and, when issued and delivered in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Shares will not be subject to any preemptive or similar rights pursuant to the Company's amended and restated articles of incorporation or amended and restated bylaws or, to such counsel's knowledge, any agreement or instrument binding upon the effect set forth in Exhibit B hereto.Company;
(eviii) The Underwriters shall have received on this Agreement has been duly authorized, executed and delivered by the Closing Date an opinion Company;
(ix) the execution and delivery by the Company of, and the performance by the Company of Xxxxxx & Xxxxxx LLPits obligations under, special U.S. maritime environmental counsel this Agreement will not contravene any provision of applicable federal or Washington state law or the amended and Liberian counsel restated articles of incorporation or amended and restated bylaws of the Company or, to such counsel's knowledge, any agreement or other instrument binding upon the Company or any of its subsidiaries that is material to the Company and its subsidiaries, taken as a whole, or, to such counsel's knowledge, any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Company or any subsidiary, and no consent, approval, authorization or order of, or qualification with, any governmental body or governmental agency is required for the Companyperformance by the Company of its obligations under this Agreement, dated except such as may be required by the Closing DateCommission, the NASD, and the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares (as to the effect set forth in Exhibit C hereto.which such counsel need not opine);
(fx) The Underwriters shall have received on the Closing Date an opinion statements (A) in the Prospectus under the captions "Risk Factors--Risks Related to this Offering--Future sales of shares by existing shareholders could affect our stock price," "Management--Employment Agreements and statement Change of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel Control Agreements," "Management--Employee Benefit Plans," "Management--Limitation of Director and Officer Liability and Indemnification," "Description of Capital Stock," "Shares Eligible for the Future Sale" and "Underwriters, dated the Closing Date, " (with respect to such matters statements under the caption "Underwriters" which relate to this Agreement) and (B) in the Registration Statement in Items 14 and 15, in each case insofar as may be requested by the Underwriters.
(g) The Underwriters shall have received, on each such statements constitute summaries of the date hereof and legal matters, documents or proceedings referred to therein, fairly present the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Deloitte & Touche LLP, independent public accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters called for with respect to such legal matters, documents and proceedings and fairly summarize the financial statements and certain financial information contained in the Registration Statement, the Time of Sale Prospectus and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
(h) The Offered Shares shall have been approved for listing on the NYSE, and satisfactory evidence thereof shall have been provided matters referred to you.
(i) FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(j) The “lock-up” agreements, each substantially in the form of Exhibit D hereto, between you and Genco and each officer and director of the Company relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date. The several obligations of the Underwriters to purchase Optional Shares hereunder are subject to the delivery to you on the applicable Option Closing Date of such documents as you may reasonably request with respect to the good standing of the Company, the due authorization and issuance of the Optional Shares to be sold on such Option Closing Date and other matters related to the issuance of such Optional Shares.therein;
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