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 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 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 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 (CyrusOne Inc.), Underwriting Agreement (Cincinnati Bell 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)(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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 shall not have occurred any downgradingdowngrading or withdrawal, nor shall any notice have been given of any intended or potential downgrading or withdrawal 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 , is material and adverse and that makes it, in your judgmentthe judgment of , impracticable to market the Offered Shares Notes 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 At the Closing Date, the Notes shall be rated at least [ ] by S&P, [ ] by Xxxxx’x and [ ] by Fitch, and the Company shall have received on delivered to the Closing Date an opinion and statement of Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP, outside counsel for the CompanyUnderwriters a letter, dated the Closing Date, from each such rating agency, or other evidence reasonably satisfactory to the effect set forth in Exhibit A hereto.Underwriters, confirming that the Notes have been assigned such ratings;
(d) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxxx P.CX. Xxxxxx, Xxxxxxxx Islands counsel for the Esq., Assistant General Counsel of Northeast Utilities Service Company, dated the Closing Date, to the effect set forth that:
(i) the Company has been duly formed, is validly existing as a Massachusetts voluntary association in Exhibit B heretogood standing under the laws of Massachusetts, 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; the Company possesses such material certificates, authorizations, franchises or permits issued by the appropriate state or federal regulatory authorities or bodies as are necessary to conduct its business as currently conducted;
(ii) each majority-owned subsidiary of 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 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; each such subsidiary possesses such material certificates, authorizations, franchises or permits issued by the appropriate state or federal regulatory authorities or bodies as are necessary to conduct its business as currently conducted;
(iii) this Agreement has been duly authorized, executed and delivered by the Company;
(iv) the Indenture has been duly qualified under the Trust Indenture Act and has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency or similar laws affecting creditors’ rights generally and general principles of equity;
(v) the Notes have been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters in accordance with the terms of this Agreement, will be entitled to the benefits of the Indenture, and will be valid and binding obligations of the Company, in each case enforceable in accordance with their respective terms, subject to applicable bankruptcy, insolvency or similar laws affecting creditors’ rights generally and general principles of equity;
(vi) (A) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Indenture and the Notes will not contravene any provision of applicable law or the Declaration of Trust of the Company or[, to the 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 or decree of any governmental body, agency or court having jurisdiction over the Company or any subsidiary, and (B) no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Company of its obligations under this Agreement, the Indenture and the Notes, except such as have been obtained from the Commission under the Securities Act and the Public Utility Holding Company Act of 1935 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 Notes;
(vii) the statements (A) in the Prospectus under the captions “Description of the Senior Notes,” “Underwriting” and “Description of the Notes,” (B) in the Registration Statement under Item 15, (C) in “Item 3—Legal Proceedings” of the Company’s most recent annual report on Form 10-K incorporated by reference in the Prospectus and (D) in “Item 1—Legal Proceedings” of Part II of the Company’s quarterly reports on Form 10-Q, if any, filed since such annual report, in each case insofar as such statements constitute summaries of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings as of the dates of such reports and fairly summarize the matters referred to therein as of the dates of such reports;
(viii) after due inquiry, 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 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 or incorporated by reference as exhibits to the Registration Statement that are not described, filed or incorporated as required;
(ix) the Company is not and, after giving effect to the offering and sale of the Notes 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;
(x) except as disclosed in the Prospectus, the Company and its subsidiaries (A) are in compliance with any and all applicable Environmental Laws, (B) have received all permits, licenses or other approvals required of it under applicable Environmental Laws to conduct its business and (C) are in compliance with all terms and conditions of any such permit, license or approval, except where such noncompliance with Environmental Laws, failure to receive required permits, licenses or other approvals or failure to comply with the terms and conditions of such permits, licenses or approvals would not, singly or in the aggregate, have a material adverse effect on the Company and its subsidiaries, taken as a whole; and
(xi) such counsel (A) is of the opinion that each document, if any, filed pursuant to the Exchange Act and incorporated by reference in the Prospectus (except for financial statements and schedules, other financial or statistical data contained or incorporated by reference in the Registration Statement or Prospectus, 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 applicable rules and regulations of the Commission thereunder, (B) has no reason to believe that (except for financial statements and schedules, other financial or statistical data contained or incorporated by reference in the Registration Statement or Prospectus, as to which such counsel need not express any belief and except for that part of the Registration Statement that constitutes the Form T-1 heretofore referred to) each part of the Registration Statement, when such part became effective, contained and, as of the date such opinion is delivered, contains any untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (C) is of the opinion that the Registration Statement and Prospectus (except for financial statements and schedules, other financial or statistical data contained or incorporated by reference in the Registration Statement or Prospectus, as to which such counsel need not express any opinion) comply as to form in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder and (D) has no reason to believe that (except for financial statements and schedules, other financial or statistical data contained or incorporated by reference in the Registration Statement or Prospectus, as to which such counsel need not express any belief) the Prospectus as of the date such opinion is delivered contains any untrue statement of a material fact 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.
(e) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxx Pillsbury Winthrop LLP, special U.S. maritime environmental counsel and Liberian counsel for the CompanyUnderwriters, dated the Closing Date, covering the matters referred to in Sections 6(d)(iii), 6(d)(iv), 6(d)(v) and 6(d)(vii) (but only as to the effect set forth statements in Exhibit C heretothe Prospectus under “Description of the Senior Notes,” “Underwriting” and “Description of the Notes,”) and clauses 6(d)(xi)(B), 6(d)(xi)(C) and 6(d)(xi)(D) above. With respect to Section 6(d)(xi) above, Xxxxxxx X. Xxxxxx, Esq. may state that his opinion and belief are based upon his participation in the 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. With respect to clauses 6(d)(xi)(B), 6(d)(xi)(C) and 6(d)(xi)(D) above, Pillsbury Winthrop LLP may state that its opinion and belief is based upon its participation in the preparation of the Registration Statement and Prospectus and any amendments or supplements thereto (but not including documents incorporated therein by reference) and review and discussion of the contents thereof (including documents incorporated therein by reference), but are without independent check or verification, except as specified. The opinion of Xxxxxxx X. Xxxxxx, Esq. described in Section 6(d) above shall be rendered to the Underwriters at the request of the Company and shall so state therein.
(f) The Underwriters shall have received on the date hereof and on the Closing Date an opinion Date, letters, the first dated the date hereof and statement of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel for the Underwriters, second 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 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
Samples: Underwriting Agreement (Northeast Utilities System)
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 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 the opinions of and statement of Xxxxxx Xxxxx Xxxxxxxx a letter from Skadden, Arps, Slate, Xxxxxxx & Xxxxxxx Xxxx LLP, outside special counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit A Exhibits B, C and D hereto.
(d) The Underwriters shall have received on the Closing Date Date, at the request of the Company, an opinion of Xxxxxx & Xxxxxxx P.CX. Xxxxxxx, Xxxxxxxx Islands counsel for Vice President, General Counsel, and Secretary of the Company, dated the Closing Date, to the effect set forth in Exhibit B E hereto.
(e) The Underwriters shall have received on the Closing Date an opinion certifications of Xxxxxx & Xxxxxx LLP(i) Xxxxxxx X. Nochierro, special U.S. maritime environmental counsel Senior Vice President and Liberian counsel for Chief Financial Officer of the Company, dated substantially in the Closing Date, to the effect form set forth in Exhibit C F hereto, and (ii) Xxxxxxx X. Xxxxxxx, Chief Geologist of the Company, substantially in the form set forth in Exhibit G hereto.
(f) The Underwriters shall have received on the Closing Date an opinion and 10b-5 statement of Xxxxxx, Xxxxx White & Xxxxxxx Case 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, and such counsel shall have received such documents and information as they may reasonably request to enable them to pass upon such matters. 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.
(g) 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 reasonably satisfactory to the Underwriters, from each of (i) KPMG LLP, independent registered public accountants for the Company, and (ii) Deloitte & Touche LLP, independent registered public accountantsaccountants for Terra, 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 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 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 (CF Industries 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:
(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 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;
(iii) the Preferred Stock shall have been approved for listing on the Nasdaq Global Market; and
(iiiv) 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 B. Xxxxx Securities’ judgment, is material and adverse and that makes it, in your B. Xxxxx Securities’ 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 Dxxxxx & Xxxxxxx Wxxxxxx LLP, outside counsel for the Company, dated the Closing Date, each 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 and negative assurance letter of Dxxxx 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 the due authorization and valid issuance of the Preferred Stock, the Registration Statement, the Prospectus and other related matters as B. Xxxxx Securities may be requested by the Underwritersreasonably request, and such counsel shall have received such papers 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 LLPeach of Fxxxxxxx LLP and BX Xxxxxxx CPA PC, 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 Underwriters 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 received 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 other documents as you B. Xxxxx Securities may reasonably request with respect to the good standing of the Company, the due authorization and issuance of the Optional Firm Shares and other matters related to the issuance of the Firm Shares.
(g) The several obligations of the Underwriters to purchase Additional Shares hereunder are subject to the delivery to B. Xxxxx Securities 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 Dxxxxx & Whitney 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 Dxxxx 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 each of Fxxxxxxx LLP and BX Xxxxxxx CPA PC, 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 B. Xxxxx Securities 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
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters hereunder 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 consolidated subsidiaries, taken as a whole, from that set forth in the Time Prospectus (exclusive of Sale Prospectus as any amendments or supplements thereto effected subsequent to the execution and delivery of the date of this Agreement Underwriting 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 the Offered Shares Securities on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Underwriters Manager 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 (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 Manager shall have received on the Closing Date an opinion and statement of Sidley Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx Xxxx LLP, outside counsel for to the Company, or of other counsel satisfactory to the Manager and who may be an officer of 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 State of Delaware, 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 consolidated subsidiaries, taken as a whole;
(ii) each of Xxxxxx Xxxxxxx XX Inc., Discover Bank, Xxxxxx Xxxxxxx & Co. Incorporated and Xxxxxx Xxxxxxx P.CInternational Incorporated (the "Material Subsidiaries") has been duly incorporated, Xxxxxxxx Islands counsel for 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 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 consolidated subsidiaries, taken as a whole;
(iii) each of the Company and its Material Subsidiaries has all necessary consents, authorizations, approvals, orders, certificates and permits of and from, and has made all declarations and filings with, all federal, state, local and other governmental authorities, all self-regulatory organizations and all courts and other tribunals, to own, lease, license and use its properties and assets and to conduct its business in the manner described in the Prospectus, except to the extent that the failure to obtain or file would not have a material adverse effect on the Company and its consolidated subsidiaries, taken as a whole;
(iv) the authorized capital stock of the Company, dated the Closing DateOffered Securities, any Underlying Preferred Shares, any Depositary Shares and any Deposit Agreement conform as to legal matters to the effect set forth descriptions thereof contained in Exhibit B hereto.the Prospectus;
(ev) 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 Preferred Shares or the Closing DateUnderlying Preferred Shares, 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 duly authorized and, when such shares are issued and delivered as contemplated by the NYSEterms of this Agreement, such shares will be validly issued, fully paid and non-assessable, 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 is not subject to any preemptive or similar rights;
(vi) the deposit of the Underlying Preferred Shares by the Company in accordance with any Deposit Agreement has been duly authorized and, when the Depositary Shares are issued and delivered in accordance with the terms of this Agreement, the Depositary Shares will represent legal and valid interests in the Underlying Preferred Shares.;
(vii) assuming due authorization, execution and delivery of any Deposit Agreement by the Depositary, each Depositary Share, if any, will represent the interest described in the Prospectus in a validly issued, outstanding, fully paid and non-assessable Underlying Preferred Share; assuming due execution and delivery of the Depositary Receipts, if any, by the Depositary pursuant to such Deposit Agreement, the Depositary Receipts will entitle the holders thereof to the benefits provided therein and in the Deposit Agreement;
(viii) this Agreement has been duly authorized, executed and delivered by the Company;
(ix) the Deposit Agreement, if any, has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company;
(x) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Preferred Shares Certificate of Designation and the Deposit Agreement, if any, will not contravene any provisions of applicable law or the certificate of incorporation or by-laws of the Company or, to the 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 consolidated subsidiaries, taken as a whole, 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 Company or any of its consolidated subsidiaries, and no consent, approval, authorization or order of or qualification with any governmental body or agency is required for the performance by the Company of its obligations under this Agreement, the Preferred Shares Certificate of Designation and the Deposit Agreement, except 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 Offered Securities; provided, however, that such counsel need not express an opinion as to whether the purchase of the Preferred Stock or Depositary Shares constitutes a "prohibited transaction" under Section 406 of the Employee Retirement Income Security Act of 1974, as amended, or Section 4975 of the Internal Revenue Code of 1986, as amended;
(xi) the statements (1) in the Basic Prospectus under "Description of Capital Stock" and "Plan of Distribution,"
Appears in 1 contract
Samples: Underwriting Agreement (Morgan Stanley Capital Trust Iii)
Conditions to the Underwriters’ Obligations. The obligation 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 5:00 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)(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 subsidiariessubsidiary, 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 Xxxxxxxxx Xxxxxxx Xxxxxx Xxxxx Xxxxxxxxxx Xxxxxxxx & Xxxxxxx Hachigan, LLP, outside counsel for the Company, dated the Closing Date, to the effect set forth that:
(i) the Company has been duly incorporated, is validly existing as a corporation in Exhibit A heretogood 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 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 subsidiary, taken as a whole;
(ii) the authorized capital stock of the Company conforms as to legal matters to the description thereof contained in the Prospectus;
(iii) the shares of Common Stock outstanding prior to the issuance of the Shares to be sold by the Company have been duly authorized and are validly issued, fully paid and non-assessable;
(iv) the Shares to be sold by the Company 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, to such counsel's knowledge, similar rights;
(v) this Agreement has been duly authorized, executed and delivered by the Company;
(vi) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement will not contravene any provision of applicable federal or Delaware corporate law or the certificate of incorporation or by-laws of the Company or, to such counsel's knowledge, any agreement or other instrument binding upon the Company or its subsidiary that is material to the Company and its subsidiary, 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 its subsidiary, and no consent, approval, authorization or order of, or qualification 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 securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares;
(vii) the statements (A) in the Prospectus under the captions "Certain Transactions", "Description of Capital Stock" and, to the extent of the description of this Agreement, "Underwriters" and (B) in the Registration Statement in Items 14 and 15, in each case insofar as such statements constitute summaries of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings and fairly summarize the matters referred to therein;
(viii) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or its subsidiary is a party or to which any of the properties of the Company or its subsidiary 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;
(ix) the Company is not and, after giving effect to the offering and sale of the Shares and the application of the proceeds thereof as described in the Prospectus, will not be required to register as an "investment company" as such term is defined in the Investment Company Act of 1940, as amended; and
(x) such counsel (A) is of the opinion that the Registration Statement and Prospectus (except for financial statements and schedules and other financial and statistical data included therein as to which such counsel need not express any opinion) comply as to form in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder, (B) has no reason to believe (except for financial statements and schedules and other financial and statistical data as to which such counsel need not express any belief) that the Registration Statement and the prospectus included therein 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 and (C) has no reason to believe (except for financial statements and schedules and other financial and statistical data as to which such counsel need not express any belief) that the Prospectus contains any untrue statement of a material fact 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.
(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 LLPXxxxxxxx, counsel for the Underwriters, dated the Closing Date, with covering the matters referred to in Sections 5(c)(iv), 5(c)(v), 5(c)(vii) (but only as to the statements in the Prospectus under "Underwriters") and 5(c)(x) above. With respect to such matters Section 5(c)(x) above, Xxxxxxxxx Xxxxxxx Xxxxxx Xxxxxxxxxx Xxxxxxxx & Hachigan, LLP and Xxxxx Xxxx & Xxxxxxxx may state that their opinion and belief 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 may specified. The opinion of Xxxxxxxxx Xxxxxxx Xxxxxx Xxxxxxxxxx Xxxxxxxx & Hachigan, LLP described in Section 5(c) shall be requested by rendered to the UnderwritersUnderwriters at the request of the Company.
(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 KMPG Peat Marwick 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.
(hf) 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 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.
(g) The Nasdaq National Market shall have approved the Common Stock for listing, 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, 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 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 or inadvisable to market proceed with the Offered Shares offer, sale 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 CompanyCompany and each of the Guarantors, 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 Guarantors contained in this Agreement are true and correct as of the Closing Date and that the Company has and the Guarantors 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 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 Xxxxxxxx Xxxxx & Xxxxxxxx & Xxxxxxx LLP, outside counsel for the Company and the Guarantors, dated the Closing Date, in substantially the form attached hereto as Exhibit A and (ii) an opinion of Xxxxxx X. Xxxxxx, General Counsel of 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 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 & 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 Date covering such matters as may be reasonably requested by the UnderwritersManager.
(ge) 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 (i) KPMG LLP, independent public accountantsaccountants of the Company, and (ii) Ernst & Young LLP, independent public accountants of Xxxxxx Energy Company, in each case, 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 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 three days prior 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 (Alpha Natural Resources, Inc.)
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters hereunder, as to the Shares to be delivered on each Closing Date are subject to the following further conditions:
(a) Subsequent to On or after the execution and delivery of this Agreement Applicable Time and prior to the such 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 or affecting the conditiongeneral affairs, management, financial position, stockholders’ equity or otherwise, or in the earnings, business or results of operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time Pricing 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 so material and adverse and that makes as to make 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 such 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 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 such Closing Date an opinion and statement of Xxxxxx Xxxxx Xxxxxxxx Ropes & Xxxxxxx Xxxx LLP, outside counsel for the Company, dated the such Closing Date, to in substantially the effect set forth in form attached as Exhibit A hereto.
(d) The Underwriters shall have received on the such Closing Date an opinion of Xxxxxx Ropes & Xxxxxxx P.CXxxx LLP, Xxxxxxxx Islands intellectual property counsel for the Company, dated the such Closing Date, to in substantially the effect set forth in form attached as Exhibit B hereto.
(e) The Underwriters shall have received on the such 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 of the Company, dated the such Closing Date, to in substantially the effect set forth in form attached as Exhibit C hereto.
(f) The Underwriters shall have received on the such Closing Date an opinion of Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and statement of Xxxxxx, Xxxxx & Xxxxxxx Xxxx LLP, counsel for the Underwriters, dated the such Closing Date, with respect to such matters as the Underwriters may be requested by reasonably require, and the UnderwritersCompany shall have furnished to such counsel such documents as they request to enable them to pass upon such matters.
(g) The Underwriters shall have received, on each of the date hereof and the such Closing Date, a letter dated the date hereof or the such Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Deloitte & Touche PricewaterhouseCoopers LLP, independent public accountants, containing (i) 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, Statement and the Time of Sale Prospectus and (ii) with respect to the Prospectusletter received on such Closing Date, a paragraph substantially the same as the paragraph set forth on Exhibit D hereto; provided that the letter delivered on the such Closing Date shall use a “cut-off date” not earlier than the date hereofthree business days prior to such Closing Date.
(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 E hereto, between you and Genco certain officers and each officer and director directors of the Company listed on Exhibit F hereto relating to sales and certain other dispositions of shares of Common Stock or certain other securities, shall have been delivered to you the Underwriters on or before the date hereof, First Closing Date hereof and shall be in full force and effect on the such Closing Date. The several obligations .
(i) Neither the Company nor any of its subsidiaries has sustained, since the date of the Underwriters to purchase Optional Shares hereunder are subject to latest audited financial statements included or incorporated by reference in the delivery to you on Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, other than as set forth or contemplated in the applicable Option Closing Date of Prospectus; and, since such documents as you may reasonably request with respect to date, there has not been any change in the good standing capital stock or long-term debt of the CompanyCompany or any of its subsidiaries or any material adverse change, or any development involving a prospective material adverse change, in or affecting the due authorization and issuance business, general affairs, management, financial position, stockholders’ equity or results of operations of the Optional Shares to be sold on such Option Closing Date Company and its subsidiaries, taken as a whole, other matters related to than as set forth or contemplated in the issuance of such Optional SharesProspectus.
Appears in 1 contract
Samples: Underwriting Agreement (Alexion Pharmaceuticals Inc)
Conditions to the Underwriters’ Obligations. The several obligations of the several Underwriters are subject to purchase and pay for the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there Firm Securities 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 changebe subject, 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 CompanyRepresentatives' sole discretion, to the effect set forth accuracy in Section 5(a)(i) above and to the effect that all material respects of the representations and warranties of the Company contained in this Agreement are true and correct herein as of the date hereof and as of the Firm Closing Date as if made on and that the Company has complied with all as 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 Firm Closing Date, to the effect set forth accuracy in Exhibit A heretoall material respects of the statements of the Company's officers made pursuant to the provisions hereof, to the performance by the Company of its covenants and agreements hereunder and to the following additional conditions:
(a) The Prospectus shall have been filed with the Commission in the manner and within the time period required by Rule 424(b) under the Act; no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto and no order directed at any document incorporated by reference in the Registration Statement or the Prospectus or any amendment or supplement thereto shall have been issued and no proceedings for that purpose shall have been instituted or threatened or, to the knowledge of the Company or the Representative[s], shall be contemplated by the Commission; and the Company shall have complied with any request of the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise).
(db) The Underwriters Representative[s] shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxxx P.C, Xxxxxxxx Islands counsel for the Companyopinions, dated the Firm Closing Date, of _______________ [and/or _______________], 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.that:
(i) FINRA shall the Company is a corporation duly organized and validly existing in good standing under the laws of the State of Delaware. All of its subsidiaries listed on Exhibit A to such counsel's opinion (the "Subsidiaries") have raised no objection been duly organized; and the Company and each of its Subsidiaries are validly existing as organizations in good standing under the laws of their respective jurisdictions of organization and are duly qualified to transact business as foreign corporations and are in good standing under the laws of the jurisdictions listed on Exhibit B to such counsel's opinion;
(ii) the Company and each of the Subsidiaries have corporate power to own or lease their respective properties and conduct their respective businesses as described in the Registration Statement and the Prospectus, and the Company has corporate power to enter into this Agreement and to carry out all the terms and provisions hereof to be carried out by it;
(iii) the issued shares of capital stock owned by the Company which have been issued by each of the corporate Subsidiaries have been duly authorized and validly issued, are fully paid and nonassessable and are owned beneficially by the Company free and clear, to the fairness and reasonableness best knowledge of such counsel, of any security interests, liens, encumbrances, equities or claims, except for pledges of such shares in connection with indebtedness included on 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 balance sheets of the Company relating to sales and certain other dispositions its consolidated Subsidiaries incorporated by reference into the Registration Statement and the Prospectus;
(iv) the Company has an authorized capitalization as set forth in the Prospectus; all of the issued shares of Common Stock or certain other securities, delivered to you on or before have been duly authorized and validly issued and are fully paid and nonassessable; [the date hereof, shall be in full force and effect on Firm Securities sold by the Closing Date. The several obligations Company hereunder have been duly authorized by all necessary corporate action 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 CompanyCompany and, 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.when issued
Appears in 1 contract
Samples: Underwriting Agreement (Alternative Living Services 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 conditions that the Registration Statement shall have become effective and the OSC shall have issued the decision document for the Canadian Final Prospectus 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 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 representations and warranties of the Company, shall be true and correct as of the Closing Date, and 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 this effect and 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 representations and warranties of the Selling Shareholders shall be true and correct as of the Closing Date, and the Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an Attorney-in-Fact for the Selling Shareholders, to this effect.
(d) The Underwriters shall have received on the Closing Date an opinion and statement of Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx Torys 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.A.
(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, Xxxxxxxx to the effect set forth in Exhibit C hereto.B.
(f) The Underwriters shall have received on the Closing Date an opinion of _________________, counsel for the Selling Shareholders, dated the Closing Date, to the effect set forth in Exhibit C.
(g) The Underwriters shall have received on the Closing Date an opinion of each of Fenwick & West LLP and statement of XxxxxxOsler, Xxxxx Xxxxxx & Xxxxxxx Harcourt LLP, counsel for the Underwriters, dated the Closing DateDate to the effect set forth in Exhibit D. With respect the opinions above, Torys LLP, Xxxxx Xxxx & Xxxxxxxx, Xxxxxxx & West LLP and Osler, Xxxxxx & Harcourt LLP 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 its opinion above as such opinion relates to international subsidiaries, Torys LLP may rely upon an opinion or opinions of foreign counsel; provided that (A) each such counsel 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, and (C) Torys LLP shall state in its opinion that it is justified in relying on each such other opinion. With respect to Section 6(f) above, _________ may rely upon an opinion or opinions of counsel for any Selling Shareholders and, with respect to factual matters and to the extent such matters 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 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) _________ shall state in their opinion that they are justified in relying on each such other opinion. The opinions of Torys LLP, Xxxxx Xxxx & Xxxxxxxx and _____________ described in Sections 6(d) and 6(f) above (and any opinions of counsel for any Selling Shareholder referred to in the immediately preceding paragraph) 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 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 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 (including without limitation adjusting entries made to certain pro forma financial presentations) 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 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 you.
(i) FINRA shall have raised no objection to the fairness and reasonableness Underwriters, from ________________regarding compliance with the laws of Quebec relating to the use of the underwriting terms French language in connection with the documents (including the Prospectus and arrangementscertificates representing the Shares) to be delivered to purchasers in Quebec.
(j) The “"lock-up” " agreements, each substantially in the form of Exhibit D hereto, E hereto between you and Genco and each shareholder, officer and director of the Company and certain other holders of the Company's securities relating to sales and certain other dispositions of shares of Common Stock Shares or certain other securities, shall have been delivered to you on or before the date hereof, and shall be in full force and effect on the Closing Date.
(k) The Underwriters shall have received opinions of Osler, Xxxxxx & Harcourt LLP, dated the date of the Canadian Preliminary Prospectus, the date of the Canadian Final Prospectus and the date of the Canadian Supplemental Prospectus, in form and substance satisfactory to the Underwriters, addressed to the Underwriters, the Company and their respective counsel, to the effect that the French language version of each of the Canadian Preliminary Prospectus, the Canadian Final Prospectus and the Canadian Supplemental Prospectus, except for the consolidated financial statements and notes to such statements and the related auditors' report on such statements (collectively, the "FINANCIAL INFORMATION"), as to which no opinion need be expressed by such counsel, is, in all material respects, a complete and accurate translation of the English language version thereof.
(l) The Underwriters shall have received opinions of PricewaterhouseCoopers LLP dated the date of the Canadian Preliminary Prospectus, the date of the Canadian Final Prospectus and the date of the Canadian Supplemental Prospectus, in form and substance satisfactory to the Underwriters, addressed to the Underwriters, the Company and their respective counsel, to the effect that the French language version of the Financial Information contained in the Canadian Preliminary Prospectus, the Canadian Final Prospectus and the Canadian Supplemental Prospectus is, in all material respects, a complete and proper translation of the English language version thereof.
(m) The Company shall have consummated its acquisition of WinZip on the terms as described in the Time of Sale Prospectus in all material respects.
(n) The Company shall have (1) obtained a pay-off letter or paid off and satisfied all remaining obligations (or received waivers with respect to such obligations) under each of (x) the First Lien Credit Agreement, dated as of February 16, 2005, among the Borrowers, the lenders named therein and Credit Suisse First Boston Toronto Branch, as administrative agent, collateral agent, syndication agent and documentation agent, (y) the Second Lien Credit Agreement, dated as of February 16, 2005, among the Borrowers, the lenders named therein and Credit Suisse First Boston Toronto Branch, as administrative agent, collateral agent, syndication agent and documentation agent, and (z) the Credit Agreement, dated as of June 29, 2005, among WinZip International LLC, as borrower, Cayman Ltd. Holdco, as guarantor, the lenders party thereto and Xxxxx Fargo Foothill, Inc., as arranger and Administrative Agent, and (2) entered into the Credit Agreement, dated as of May __, 2005, among Corel Corporation and Corel US Holdings, LLC, as Borrowers, the lenders named therein, and Xxxxxx Xxxxxxx Senior Funding Inc., as administrative agent, collateral agent, syndication agent and documentation agent. 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 (Corel Corp)
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 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; 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 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 a certificate, dated the Closing Date and signed by an executive officer of the Selling Stockholder, to the effect that the representations and warranties of the Selling Stockholder contained in this Agreement are true and correct as of the Closing Date and that the 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 such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(d) The Underwriter 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 hereto.B.
(de) The Underwriters Underwriter shall have received on the Closing Date an opinion of LeBoeuf, Lamb, Xxxxxx & XxxXxx, L.L.P., special U.S. regulatory counsel for the Company, dated the Closing Date, as set forth in Exhibit C.
(f) The Underwriter shall have received on the Closing Date an opinion of LeBoeuf, Lamb, Xxxxxx & XxxXxx, L.L.P., special U.K. counsel for the Company, dated the Closing Date, as set forth in Exhibit D.
(g) The Underwriter shall have received on the Closing Date an opinion of Xxxx X. Xxxxx, Esq., the Company’s General Counsel, dated the Closing Date, as set forth in Exhibit E.
(h) The Underwriter shall have received on the Closing Date an opinion of Xxxxx XxxXxxxxx, Esq., the Company’s in-house Australian counsel, dated the Closing Date, as set forth in Exhibit F.
(i) The Underwriter shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxxx P.CXxxxxxxxx, Xxxxxxxx Islands counsel for Esq., the Company’s in-house Canadian counsel, dated the Closing Date, to the effect as set forth in Exhibit B hereto.G.
(ej) The Underwriters Underwriter shall have received on the Closing Date an opinion of Xxxxxx Weil, Gotshal & Xxxxxx LLP, special U.S. maritime environmental outside counsel and Liberian counsel for to the CompanySelling Stockholder, dated the Closing Date, to the effect as set forth in Exhibit C hereto.H.
(fk) The Underwriters Underwriter shall have received on the Closing Date an opinion and statement of Xxxxxx, Xxxxx Xxxx & Xxxxxxx LLPXxxxxxxx, counsel for the UnderwritersUnderwriter, dated the Closing Date, with respect to such matters as the Underwriter shall request. The opinions of Weil, Gotshal & Xxxxxx LLP, LeBoeuf, Lamb, Xxxxxx & XxxXxx, L.L.P., Xxxx X. Xxxxx, Esq., Xxxxx XxxXxxxxx, Esq. and Xxxxxx Xxxxxxxxx, Esq. described in Sections 6(d)- 6(j) above shall be rendered to the Underwriter at the request of the Company or the Selling Stockholder, as the case may be requested by the Underwritersbe, and shall so state therein.
(gl) 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 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.
(jm) 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. 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 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 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) 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 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 & (i) Xxxxxxx Coie LLP, outside counsel for the Company, dated the Closing Date, in form and substance satisfactory to the effect set forth Underwriters, and (ii) Xxxxxx & Xxxxxx LLP, outside counsel for the Company, dated the Closing Date, in Exhibit A heretoform and substance satisfactory to 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 respect in form and substance satisfactory to such matters as may be requested by the Underwriters. The opinions of Xxxxxxx Coie LLP and Xxxxxx & Xxxxxx LLP 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 Ernst & Touche LLPYoung, 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.
(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 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 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 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 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 certificatecertificate of the Company, 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 Xxxxxx, Xxxx & Xxxxxxxx & Xxxxxxx LLP, outside counsel for the Company, dated the Closing Date, in form and substance acceptable 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.C, Xxxxxxxx Islands counsel for the General Counsel of the Company, dated the Closing Date, in form and substance acceptable 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 Xxxxxxxxx Xxxx 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 acceptable 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 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 LLP, 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 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.
(hg) The Offered Shares At the Closing Date, the Company shall have been approved for listing used its best efforts to list the Shares on the NYSE, and satisfactory evidence thereof shall have been provided to youNASDAQ Global Market.
(i) FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(jh) 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 1 contract
Samples: Underwriting Agreement (Biocryst Pharmaceuticals 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 [●] (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) 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 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 Xxxxxx LLP, outside counsel for the Company, dated the Closing Date, in form and substance satisfactory to the effect set forth in Exhibit A heretoRepresentatives.
(d) The Underwriters shall have received on the Closing Date an opinion and negative assurance letter 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 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 Sterling LLP, counsel for the Underwriters, dated the Closing Date, in form and substance satisfactory to the Representatives. With respect to the negative assurance letters to be delivered pursuant to Sections 5(c) and 5(d) above, Xxxxxx & Xxxxxx LLP and Shearman & Sterling 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 opinion of Xxxxxx & Xxxxxx LLP described in Section 5(c) 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 each of the date hereof and the Closing Date, letters dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from KPMG LLP, independent public accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to such matters as may be requested by the Underwritersfinancial statements and certain financial information of Rev LLC and the Fund III Assets contained in the Registration Statement, the Time of Sale Prospectus and the Prospectus; provided that the letters delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
(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 audited financial statements and certain audited financial information of Quattro 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 the Representatives 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 Representatives 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 the Closing Date, a Chief Financial Officer’s certificate, dated the Closing Date and signed on behalf of the Company by the Chief Financial Officer of the Company, in form and substance satisfactory to the Representatives.
(i) The Shares shall have been approved for listing on the NASDAQ Global Select Market, subject only to official notice of issuance.
(j) The Financial Industry Regulatory Authority, Inc. (“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.
(k) 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:
(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 & 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 and negative assurance letter of Shearman & Sterling 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) letters 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 letters furnished to the Underwriters pursuant to Section 5(f) 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;
(v) a letter dated the Option Closing Date, in form and substance satisfactory to the Underwriters, from Deloitte 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;
(vi) a Chief Financial Officer’s certificate, dated the Option Closing Date and signed on behalf of the Company by the Chief Financial Officer of the Company, in substantially the same form and substance as the certificate required by Section 5(i) hereof; and
(vii) 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 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 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 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 & 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 Gray LLP, counsel for the Underwriters, dated the Closing Date, with respect in form and substance reasonably satisfactory to the Representatives, 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 Underwriters shall have been approved for listing received, on each of the NYSEdate hereof and the Closing Date, 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, a certificate executed by the Chief Financial Officer of the Company with respect to certain previously agreed financial information contained in the Registration Statement, the Time of Sale Prospectus and the Prospectus.
(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. 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 (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)(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) Xxxxxxx X.X. Xxxxxxx, Esq., general counsel to the Company, shall have furnished to the Underwriter his written opinion, dated as the Closing Date, in form and substance satisfactory to the Underwriter, to the effect that the compliance by the Company with all of the provisions of this Agreement and the consummation of the transactions herein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other material agreement or instrument to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or by which any of the property or assets of the Company or any of its subsidiaries is subject.
(e) 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.
(ef) 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(e) 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.
(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 reasonably satisfactory to the UnderwritersUnderwriter, 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 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.
(j) 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 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 several obligations of the several Underwriters are to purchase and pay for the Notes shall be subject to the accuracy of the representations and warranties of the Issuers and the Guarantors in Section 1 hereof, in each case as of the date hereof and as of the Closing Date, as if made on and as of the Closing Date, to the accuracy of the statements of the Issuers’ officers made pursuant to the provisions hereof, to the performance in all material respects by the Issuers and the Guarantors of their covenants and agreements hereunder and to the following additional conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to The Underwriters shall have received (i) an opinion, dated 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 Counsel for a possible change that does not indicate the direction of the possible changeIssuers, in form and substance reasonably satisfactory to the rating accorded any Underwriters, and a negative assurance letter, dated the Closing Date, of Counsel for the securities of Issuers, in form and substance reasonably satisfactory to 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
Underwriters, (ii) there shall not have occurred any changean opinion, or any development involving a prospective changedated the Closing Date, of Xxx X.X. Xxxxxx, Vice President and General Counsel of Tesoro Logistics GP, LLC, the general partner of the Partnership, in form and substance reasonably satisfactory to the conditionUnderwriters and (iii) an opinion, financial or otherwisedated the Closing Date, or in the earningsof Xxxxxx, business or operations Xxxx & Xxxxxxxx LLP, with respect to certain matters 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 ProspectusColorado law.
(b) The Underwriters shall have received on the Closing Date a certificatean opinion and negative assurance letter, each dated the Closing Date Date, of Counsel for the Underwriters, with respect to the issuance and signed by an executive officer sale of the CompanyNotes and such other related matters as the Underwriters may reasonably require, and the Issuers shall have furnished to such counsel such documents as it may reasonably request for the effect set forth in Section 5(a)(i) above and purpose of enabling it 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 pass upon such certificate may rely upon the best of his or her knowledge as to proceedings threatenedmatters.
(c) (A) 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 DateDate a letter, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance reasonably satisfactory to the Underwriters and Counsel for 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 historical combined consolidated financial statements and certain financial information of the Issuers contained in or incorporated by reference into the Registration Statement, the Time of Sale Prospectus Disclosure Package and the Final Prospectus; provided that the each letter delivered on the Closing Date shall use a “cut-off date” within three business days of the date of such letter and that their procedures shall extend to financial information in the Final Prospectus not earlier than contained in the Preliminary Prospectus and (B) the Underwriters shall have received on the date hereof, in form and substance reasonably satisfactory to the Underwriters and Counsel for the Underwriters (i) from PricewaterhouseCoopers LLP, independent accountants with respect to Northwest Products System, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the audited historical combined statements of revenues and direct operating expenses of the Northwest Products System incorporated by reference into the Registration Statement, the Disclosure Package and the Final Prospectus and (ii) from PricewaterhouseCoopers LLP, independent accountants with respect to QEP Field Services Company, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the audited historical consolidated financial statements of QEP Field Services Company incorporated by reference into the Registration Statement, the Disclosure Package and Final Prospectus. References to the Disclosure Package and the Final Prospectus in this paragraph (c) with respect to any letter referred to above shall include any amendment or supplement thereto at the date of such letter.
(i) The Partnership and its subsidiaries, taken as a whole, shall not have sustained, since the date of the most recent financial statements included in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), any material loss or interference with its businesses from fire, explosion, flood, accident or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree (whether domestic or foreign) otherwise than as set forth in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto); and (ii) since the respective dates as of which information is given in the Registration Statement, the Disclosure Package and the Final Prospectus, there shall not have been any material adverse change, or any development involving a prospective material adverse change, in or affecting the general affairs, management, consolidated financial position or results of operations of the Partnership and its subsidiaries, taken as a whole, otherwise than as set forth in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), the effect of which, in any such case described in clause (i) or (ii), is, in the sole judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the offering or delivery of the Notes on the terms and in the manner described in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(e) The Underwriters shall have received certificates dated the Closing Date and in form and substance reasonably satisfactory to the Underwriters, of an executive officer of the general partner of the Partnership: (i) as to the accuracy in all material respects (except to the extent already qualified by materiality, in which case such obligations shall be subject to accuracy in all respects) of the representations and warranties of the Issuers and the Guarantors in this Agreement at and as of the Closing Date; and (ii) that the Issuers and/or the applicable Guarantor(s), as the case may be, have performed in all material respects all covenants and agreements and satisfied all conditions on its or their part to be performed or satisfied at or prior to the Closing Date.
(f) The Notes shall have received initial ratings by Standard & Poor’s and Xxxxx’x, and, subsequent to the date hereof, there shall not have been any decrease in the rating of the Notes or of any Issuer’s other debt securities by any “nationally recognized statistical rating organization”, as that term is defined by the Commission for purposes of Section 3(a)(62) under the Exchange Act, and no such organization shall have publicly announced that it has under surveillance or review its ratings of the Notes or of any Issuer’s other debt securities or any notice or public announcement given of any intended or potential decrease in any such rating or that any such securities rating agency has under surveillance or review, with possible negative implications, its rating of the Notes.
(g) The Notes shall be eligible for clearance and settlement through DTC.
(h) The Offered Shares Issuers, the Guarantors and the Trustee shall have been approved for listing on executed and delivered the NYSE, 2024 Indenture and satisfactory evidence thereof the Supplemental Indenture and the Underwriters shall have been provided to youreceived executed counterparts thereof.
(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 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 and Counsel for the delivery to you on Underwriters shall have received such further certificates, documents or other information as they may have reasonably requested from 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 SharesIssuers.
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 Partnership Entities 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) except as set forth in or contemplated by the Time of Sale Prospectus, as of the date of this Agreement, there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, condition or in the earnings, business or operations of the Company and its subsidiariesPartnership 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 judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Offered Shares Notes 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 on behalf of the Company, MLP GP by the Chief Executive Officer and Chief Financial Officer of the MLP GP with respect to the effect set forth entities covered by the certificate, stating that:
(i) the representations, warranties and agreements of the Partnership Parties in Section 5(a)(i) above and to the effect that the representations and warranties 1 of the Company contained in this Agreement are true and correct on and as of the Closing Date Date, and that the Company has complied with all of the agreements and Partnership Parties have satisfied all of the conditions on its their part to be performed or satisfied hereunder on at or before prior to the Closing Date. The officer signing ;
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued; and delivering no proceedings or examination for that purpose have been instituted or, to the knowledge of such certificate may rely upon officers, threatened;
(iii) since the best date of his the most recent financial statements included in the Time of Sale Prospectus, there have been no occurrences which individually or her knowledge in the aggregate, could reasonably be expected to have a Material Adverse Effect; and
(iv) they have carefully examined the Registration Statement, the Time of Sale Prospectus and the Prospectus, and, in their opinion, (A) (1) the Registration Statement, as of its effective date and as of the Closing Date, (2) the Time of Sale Prospectus, as of the Time of Sale, and (3) the Prospectus, as of the date of the Prospectus and as of the Closing Date, did not and do not contain any untrue statement of a material fact and did not and do not omit to proceedings threatenedstate a material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration Statement, in the light of the circumstances under which they were made) not misleading, and (B) since the Registration Statement’s effective date, no event has occurred that should have been set forth in a supplement or amendment to the Registration Statement, the Prospectus or any free writing prospectus that has not been so set forth.
(c) The Underwriters shall have received on the Closing Date an opinion and statement of Xxxxxx Xxxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP, outside counsel for the CompanyIssuers, 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.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 LLPL.L.P., counsel for the Underwriters, dated the Closing Date, covering such matters with respect to such the issuance and sale of the Notes, the Registration Statement, the Time of Sale Prospectus and the Prospectus and other related matters as the Managers may be requested by reasonably require, and the UnderwritersPartnership Entities shall have furnished to such counsel such documents as they may request for the purpose of enabling 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 Ernst & Touche Young LLP, independent public accountants, containing statements and information stating, as of the type date hereof or the Closing Date, as the case may be (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Preliminary Prospectus, as of a date not more than three days prior to the date hereof or the Closing Date, as the case may be), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily included in covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(f) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed on behalf of (i) the MLP GP and the Partnership by the Chief Executive Officer and Chief Financial Officer of the MLP GP and (ii) El Paso by the Executive Vice President and General Counsel of El Paso, in each case with respect to the financial statements and certain financial information contained in entities covered by the Registration Statementcertificate, the Time of Sale Prospectus and the Prospectus; provided stating 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, SLNG/Xxxx Express Acquisition shall be consummated as soon as practicable, but in full force and effect on no event later than two days, following the Closing Date. The several obligations , and there will be no material closing conditions to the closing of the Underwriters to purchase Optional Shares hereunder SLNG/Xxxx Express Acquisition that are subject to outside the delivery to you on the applicable Option Closing Date of such documents as you may reasonably request with respect to the good standing control 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 SharesPartnership or El Paso.
Appears in 1 contract
Samples: Underwriting Agreement (El Paso Pipeline Partners, L.P.)
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 Kxxxxx Xxxxx Xxxxxxxx & Xxxxxxx Fxxxxxx 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 Rxxxxx & Xxxxxxx Sxxxxxx P.C, Xxxxxxxx Mxxxxxxx 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 Sxxxxx & Xxxxxx Kxxxxx 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 XxxxxxMxxxxx, Xxxxx & Xxxxxxx Bxxxxxx 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 1 contract
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 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 and each officer and director certain stockholders 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. 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 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 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)(i6(a) above and to the effect that (i) no stop order suspending the effectiveness of either 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; and (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 and (B) a certificate, dated the Closing Date and signed by an executive officer of the Selling Shareholder, to the effect that (i) the Company representations and warranties of the Selling Shareholder contained in this Agreement are true and correct as of the Closing Date and (ii) 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 of Xxxxxx Xxxxx Xxxxxxxx & (i) Xxxxxxx Coie LLP, outside counsel for the Company, dated the Closing Date, in form and substance satisfactory to the effect set forth Underwriters, and (ii) Xxxxxx & Xxxxxx LLP, outside counsel for the Company, dated the Closing Date, in Exhibit A heretoform and substance satisfactory to the Underwriters.
(d) The Underwriters shall have received on the Closing Date an opinion and negative assurance letter of Xxxxxx Xxxxx Xxxx & Xxxxxxx P.CXxxxxxxx LLP, Xxxxxxxx Islands counsel for the CompanyUnderwriters, dated the Closing Date, in form and substance 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 CompanySelling Shareholder, dated the Closing Date, in form and substance satisfactory to the effect set forth Underwriters. The opinions of Xxxxxxx Coie LLP and Xxxxxx & Xxxxxx LLP described in Exhibit C heretoSections 6(c) and 6(e) above shall be rendered to the Underwriters at the request of the Company and shall so state therein.
(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 LLPYoung, 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 StatementStatements, 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 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. 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 sale 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.A.
(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.B.
(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 A, 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 A, 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.
(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 (SS&C Technologies Holdings 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 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 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)(iclause (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 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 be in effect and no proceedings for such purpose shall be pending before or, to the knowledge of the Company, threatened by the Commission.
(d) You shall have received on the Closing Date an opinion and statement of Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLPL.L.P., outside counsel for the Company, dated the Closing Date, to in the effect form set forth in Exhibit A heretoA. The opinion of Xxxxx & Xxxxxxx L.L.P. shall be rendered to you at the request of the Company and shall so state therein.
(de) The Underwriters You shall have received on the Closing Date an opinion of Xxxxxx Brantley & Xxxxxxx P.CXxxxxxxxx, Xxxxxxxx Islands P.C., Alabama communications counsel for the Company, dated the Closing Date, to in the effect form set forth in Exhibit B heretoB. The opinion of Xxxxxxxx & Xxxxxxxxx, P.C. shall be rendered to you at the request of the Company and shall so state therein.
(ef) The Underwriters You shall have received on the Closing Date an opinion of Xxxxxx Stowers, Hayes, Xxxxx & Xxxxxx LLPXxxxx, special U.S. maritime environmental counsel and Liberian Georgia communications counsel for the Company, dated the Closing Date, to in the effect form set forth in Exhibit C heretoC. The opinion of Stowers, Hayes, Xxxxx & Xxxxx shall be rendered to you at the request of the Company and shall so state therein.
(fg) The Underwriters You shall have received on the Closing Date an opinion and statement of J. Xxxxxx Xxxxxx, Xxxxx General Counsel of the Company, dated the Closing Date, in the form set forth in Exhibit D. The opinion of J. Xxxxxx Xxxxxx shall be rendered to you at the request of the Company and shall so state therein.
(h) You shall have received on the Closing Date an opinion of Shearman & Xxxxxxx LLPSterling, 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.
(gi) 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 & Touche Xxxxxx Xxxxxxxx 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 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 E 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 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.
(k) The Company shall have complied with the provisions of Section 6(a) hereof with respect to the furnishing of Prospectuses on the business day next following the date of this Agreement, in such quantities as you shall have reasonably requested.
(l) The Shares shall have been approved for quotation on the Nasdaq National Market by the National Association of Securities Dealers, Inc. (the "NASD").
(m) Interstate FiberNet, Inc., NationsBank, N.A. and a majority of the lenders party to the First Amended and Restated Credit Agreement dated as of February 24, 1998 and as amended as of February 10, 1999 shall have entered into an amendment thereto, substantially in the form set forth in Exhibit F.
(n) You shall have received such other documents and certificates as you or your counsel may request. 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
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(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.
(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(i) 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 1 contract
Samples: Underwriting Agreement (Bilander 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 any of the securities of the Company or any of its subsidiaries Partnership Entities 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) except as set forth in or contemplated by the Time of Sale Prospectus, as of the date of this Agreement, there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, condition or in the earnings, business or operations of the Company and its subsidiariesPartnership 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 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 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 MLP GP by an executive officer the Chief Executive Officer and Chief Financial Officer of MLP GP with respect to the entities covered by the certificate, stating that:
(i) the representations, warranties and agreements of the Company, to the effect set forth Partnership Parties in Section 5(a)(i) above and to the effect that the representations and warranties 1 of the Company contained in this Agreement are true and correct on and as of the Closing Date Date, and that the Company has complied with all of the agreements and Partnership Parties have satisfied all of the conditions on its their part to be performed or satisfied hereunder on at or before prior to the Closing Date. The officer signing ;
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued; and delivering no proceedings or examination for that purpose have been instituted or, to the knowledge of such certificate may rely upon officers, threatened;
(iii) since the best date of his the most recent financial statements included in the Time of Sale Prospectus, there have been no occurrences which, individually or her knowledge in the aggregate, could reasonably be expected to result in a Material Adverse Effect; and
(iv) they have carefully examined the Registration Statement, the Time of Sale Prospectus and the Prospectus, and, in their opinion, (A)(1) the Registration Statement, as of its effective date and as of the Closing Date, (2) the Time of Sale Prospectus, as of the Time of Sale, and (3) the Prospectus, as of the date of the Prospectus and as of the Closing Date, did not and do not contain any untrue statement of a material fact and did not and do not omit to proceedings threatenedstate a material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration Statement, in the light of the circumstances under which they were made) not misleading, and (B) since the Registration Statement’s effective date, no event has occurred that should have been set forth in a supplement or amendment to the Registration Statement, the Prospectus or any free writing prospectus that has not been so set forth.
(c) The Underwriters shall have received on the Closing Date an opinion and statement of Xxxxxx Axxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP, outside counsel for the CompanyPartnership, 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 Vxxxxx & 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 LLPExxxxx L.L.P., counsel for the Underwriters, dated the Closing Date, covering such matters with respect to such the issuance and sale of the Units, the Registration Statement, the Time of Sale Prospectus and the Prospectus and other related matters as the Managers may be requested by reasonably require, and the UnderwritersPartnership Entities shall have furnished to such counsel such documents as they may request for the purpose of enabling 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 Ernst & Touche Young LLP, independent public accountants, containing statements and information stating, as of the type date hereof or the Closing Date, as the case may be (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the preliminary prospectus, as of a date not more than three days prior to the date hereof or the Closing Date, as the case may be), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily included in covered by accountants’ “comfort letters” to underwriters in connection 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 hereofregistered public offerings.
(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 El Paso, El Paso LLC, Holdings, MLP GP and each officer and director of the Company MLP GP relating to sales and certain other dispositions of shares of Common Stock Units 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 Units 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 CompanyPartnership Entities, the due authorization and issuance of the Optional Shares Additional Units to be sold on such Option Closing Date and other matters related to the issuance of such Optional SharesAdditional Units.
Appears in 1 contract
Samples: Underwriting Agreement (El Paso Pipeline Partners, L.P.)
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 Notes 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 Any 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 Cravath, Swaine & Xxxxx Xxxxxxxx & 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 of Xxxxxx & Xxxxxxx P.CE. Xxxxx Xxxx, Xxxxxxxx Islands general counsel for to the Company, dated the Closing Date, in form and substance reasonably acceptable to the effect set forth in Exhibit B heretoUnderwriters.
(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 in form and substance reasonably acceptable 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 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.
(g) On or prior to the Closing Date, the Company shall have furnished to the Representatives such further certificates and documents as the Representatives may reasonably request.
(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 to the fairness and reasonableness delivered executed copies of the underwriting terms Indenture and arrangementsthe Notes.
(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 (Crown Castle International Corp)
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 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 business, management 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, Xxxxxxx & Xxxxxxx (US) LLP, outside counsel for the Company, dated the Closing Date, to the effect set forth that:
(i) the Company has been duly incorporated and is validly existing as a corporation in Exhibit A heretogood standing under the laws of the State of Ohio, with power and authority (corporate and other) to own, lease and operate its properties and conduct its business as described in each of the Registration Statement, the Prospectus and the Time of Sale Prospectus;
(ii) the Shares conform in all material respects to the descriptions thereof contained in each of the Registration Statement, the Prospectus and the Time of Sale Prospectus;
(iii) the Shares 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 arising by operation of the Company’s articles of incorporation, code of regulations or the General Corporation Laws of the State of Ohio, or to such counsel’s knowledge, otherwise;
(iv) this Agreement has been duly authorized, executed and delivered by the Company;
(v) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the issuance of the Shares, the compliance by the Company with all of the provisions of this Agreement, and the consummation of the transactions contemplated herein, will not result in any violation of the provisions of the articles of incorporation or code of regulations of the Company or the charter or by-laws of any of its subsidiaries, or result in any violation of any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company or any of its subsidiaries or their properties;
(vi) no consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the issue and sale of the Shares or the consummation by the Company of the transactions contemplated by this Agreement, except such as have been obtained under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Shares;
(vii) the statements relating to legal matters, documents or proceedings included in (A) the Prospectus under the captions “Description of Capital Stock” and “Certain ERISA Considerations” and (B) the Prospectus under the caption “Underwriting”, in each case fairly summarize in all material respects such matters, documents or proceedings;
(viii) the Company is not, and after giving effect to the offering and sale of the Shares and the application of the proceeds thereof as described in the Time of Sale Prospectus will not be, required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended; and
(A) in the opinion of such counsel (1) each document filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the 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 opinion) appeared on its face to be appropriately responsive as of its filing date in all material respects to the requirements of the Exchange Act and the applicable rules and regulations of the Commission thereunder, and (2) the Registration Statement and the 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 opinion) appear on their face to be appropriately responsive in all material respects to the requirements of the Securities Act and the applicable rules and regulations of the Commission thereunder, and (B) nothing has come to the attention of such counsel that causes such counsel to believe that (1) any part of the Registration Statement, when such part became effective, (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) 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 Registration Statement or the 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) on the date of this Agreement 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, (3) 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 (4) the 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 amended or supplemented, if applicable, as of the Closing Date contains any untrue statement of a material fact 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.
(d) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx Squire, Xxxxxxx & Xxxxxxx P.C(US) LLP, Xxxxxxxx Islands tax counsel for the Company, dated the Closing Datesuch date, to the effect that such firm confirms that the statements set forth in Exhibit B heretothe Prospectus under the caption “Certain U.S. Income Tax Consequences to Non-U.S. Holders of Common Shares”, insofar as they purport to constitute a summary of matters of U.S. federal income tax law, constitute an accurate summary of the matters set forth in all material respects.
(e) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxx LLPXxxxx X. Xxxxx, special U.S. maritime environmental counsel Esq., Vice President and Liberian counsel for Senior Counsel of the Company, dated the Closing Datesuch date, to the effect set forth that:
(i) the Shares will not be subject to any preemptive or similar rights;
(ii) the shares of Common Stock outstanding prior to the issuance of the Shares have been duly authorized and are validly issued, fully paid and non-assessable;
(iii) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the issuance of the Shares, the compliance by the Company with all of the provisions of this Agreement, and the consummation of the transactions contemplated herein, will not conflict with or result in Exhibit C heretoa breach or violation of any terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement, or other agreement or instrument known to such counsel to which the Company or any of its subsidiaries is bound or to which any of the property or assets of the Company or any of its subsidiaries is subject; and
(iv) there is no pending or, to the knowledge of such counsel, threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries or its or their property, of a character required to be disclosed in the Registration Statement or the Prospectus which is not adequately disclosed, and there is no statute, regulation, franchise, contract or other document of a character required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required.
(f) The Underwriters shall have received on the Closing Date an opinion and statement of Xxxxxx, Xxxxx Xxxxxxxx & Xxxxxxx Xxxxxxxx LLP, counsel for the Underwriters, dated the Closing Date, such opinion or opinions, with respect to the incorporation of the Company, the validity of the Shares, the Registration Statement, the Prospectus and the Time of Sale Prospectus as well as such other related matters as the Underwriters 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. The opinions described in Sections 5(c) and 5(d) 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 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 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 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 2 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:: --------------- /1/ Insert date 3 business days or, in the event the offering is priced after 4:30 p.m. Eastern Time, 4 business days after date of Underwriting Agreement. /2/ Insert date 5 business days after the date inserted in accordance with note 6 above. /3/ Insert date 10 business days after the expiration of the green shoe option.
(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 Duane, Morris & Xxxxxxx Heckscher LLP, outside counsel for the CompanyCompany and for the Parent, dated the Closing Date, to the effect set forth that:
(i) the Company has been duly incorporated, is validly existing as a corporation in Exhibit A heretogood 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 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;
(ii) each subsidiary of 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 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) 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 prior to the issuance of the Shares have been duly authorized and are validly issued, fully paid and non- assessable;
(v) all of the issued shares of capital stock of each subsidiary of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and are owned indirectly or directly by the Company, free and clear of all liens, encumbrances, equities or claims;
(vi) the Shares 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 right or similar rights;
(vii) this Agreement has been duly authorized, executed and delivered by the Company;
(viii) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement will not contravene any provision of applicable law (other than the securities or Blue Sky laws of the various states, as to which such counsel expresses no opinion) or the articles of incorporation or by-laws of the Company or, to the 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 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 agency is required for the performance by the Company of its obligations under this Agreement, except 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;
(ix) the statements (A) in the Prospectus under the captions, "Relationship with Centocor, Inc.," "Description of Capital Stock" and "Underwriters" and (B) in the Registration Statement in Items 14 and 15, in each case insofar as such statements constitute summaries of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings and fairly summarize the matters referred to therein;
(x) to the best of such counsel's knowledge, there are no 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;
(xi) the Company is not and, after giving effect to the offering and sale 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;
(xii) Based solely on: (i) discussions with employees of the Company identified to such counsel as being responsible for environmental matters; and (ii) such counsel's review of the Company's files provided to such counsel by those employees, to the best of such counsel's knowledge, the Company and its subsidiaries (A) are in compliance with any and all applicable federal, state and local laws and regulations relating to the protection of human health and the environment, or to hazardous or toxic substances or wastes, pollutants or contaminants, other than laws and regulations relating to occupational safety and health, as to which we express no opinion, (the "Applicable Environmental Laws"), (B) have received all permits, licenses or other approvals required of them under Applicable Environmental Laws to conduct their respective businesses and (C) are in compliance with all terms and conditions of any such permit, license or approval, except where such noncompliance with applicable Environmental Laws, failure to receive required permits, licenses or other approvals or failure to comply with the terms and conditions of such permits, licenses or approvals would not, singly or in the aggregate, have a material adverse effect on the Company and its subsidiaries, taken as a whole;
(xiii) such counsel (A) is of the opinion that the Registration Statement and Prospectus (except for financial statements and schedules and other financial and statistical data included therein as to which such counsel need not express any opinion) comply as to form in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder, (B) has no reason to believe that (except for financial statements and schedules and other financial and statistical data as to which such counsel need not express any belief) the Registration Statement and the prospectus included therein 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 and (C) has no reason to believe that (except for financial statements and schedules and other financial and statistical data as to which such counsel need not express any belief) the Prospectus contains any untrue statement of a material fact 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;
(xiv) this Agreement has been duly authorized, executed and delivered by the Parent; and
(xv) the execution and delivery by the Parent of, and the performance by the Parent of its obligations under, this Agreement will not contravene any provision of applicable law, or the articles of incorporation or bylaws of the Parent, or, to the best of such counsel's knowledge, any agreement or other instrument binding upon the Parent 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 Parent, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Parent of its obligations under this Agreement, except such as may be required by the securities or Blue Sky laws of the various states in connection with offer and sale of the Shares.
(d) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxxx P.CXxxxx, Xxxxxxxx Islands in-house counsel for the Company, dated the Closing Date, to the effect set forth that:
(i) there is a likelihood that the Company will obtain patents with respect to the Company's P-selectin assays;
(ii) such counsel does not know of any pending or threatened legal or government proceedings relating to patents or proprietary know-how owned or used by the Company to which the Company is a party or to which the properties of the Company are subject which, if adversely decided, would have a material adverse effect on the business, financial condition or results of the operations of the Company and its subsidiaries, taken as a whole;
(iii) such counsel has no knowledge of any infringement or alleged infringement by the Company of patent rights of others which would have a material adverse effect on the Company and its subsidiaries, taken as a whole;
(iv) the statements in Exhibit B heretothe Prospectus under the captions "Risk Factors -- Government Regulation; No Assurance of Obtaining Regulatory Approvals," "Business -- Proprietary Technology, Patents and Licenses", "Business -- Governmental Regulation" and "Business -- Legal Proceedings", in each case insofar as such statements constitute summaries of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings and fairly summarize the matters referred to therein.
(e) The Underwriters Representatives shall have received on the Closing Date an opinion of Xxxxxx Xxxxxxxx, Xxxxx, Xxxxx & Xxxxxx LLPXxxxxxxx P.C., special U.S. maritime environmental counsel and Liberian patent counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit C hereto.that:
(fi) The Underwriters shall have received on the Closing Date an opinion statements in the Prospectus under the heading "Risk Factors-- Patents and statement Licensing Arrangements" and under the heading "Business--Proprietary Technology, Patents and Licenses", 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 referred to therein;
(ii) except for pending patent applications by the Underwriters.
(g) The Underwriters shall have receivedCompany, on each of there are no legal or governmental proceedings pending relating to patents or proprietary information rights to which the date hereof and the Closing Date, Company is a letter dated the date hereof party 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 which any patents or proprietary 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 rights of the Company relating to sales is subject, and certain other dispositions of shares of Common Stock no such proceedings are threatened or certain other securitiescontemplated by governmental authorities or others, 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 except for 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.proceedings;
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 [ l ] (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 and no proceeding for such purpose or pursuant to Section 8A of the securities of Securities Act shall be pending before or threatened by 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 ActCommission; 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)(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 Xxxxx Xxxxxxxx & Xxxxxxx LLP, outside counsel for the Company, dated the Closing Date, in form and substance reasonably satisfactory to counsel for the effect set forth in Exhibit A heretoUnderwriters.
(d) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxxx P.CLLP, Xxxxxxxx Islands counsel for the CompanySelling Shareholders, dated the Closing Date, 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 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 respect in form and substance reasonably satisfactory to such matters as may be requested by counsel for 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 reasonably 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.
(g) 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, signed by the chief financial officer of the Company as to the accuracy of certain financial and other information included in the Registration Statement, Time of Sale Prospectus and the Prospectus.
(h) The Offered Shares shall have been approved for listing on Lock-up Agreements between the NYSERepresentatives and certain shareholders, officers 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 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. .
(i) 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:
(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 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 6(c) hereof;
(iii) an opinion of Xxxxxx LLP, outside counsel for the Selling Shareholders, 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 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(e) hereof;
(v) a letter dated the Option Closing Date, in form and substance reasonably satisfactory to the Underwriters, from Deloitte & Touche LLP, independent public accountants, substantially in the same form and substance as the letter 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;
(vi) a certificate, dated the Option Closing Date, in form and substance satisfactory to the Representatives, signed by the chief financial officer of the Company, confirming that the certificate delivered on the Closing Date pursuant to Section 6(g) hereof remains true and correct as of such Option Closing Date; and
(vii) 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 of such Optional Additional Shares.
Appears in 1 contract
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 Rule 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 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. With the consent of the Representatives, based solely 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 execution, delivery and performance of the Indenture have received been duly authorized by all necessary corporate action of the Company, and the Indenture has been duly executed and delivered by the Company and is the legally valid and binding agreement of the Company, enforceable against the Company in accordance with its terms.
(iv) The Indenture has been qualified under the Trust Indenture Act.
(a) The execution, delivery and performance of the Securities have been duly authorized by all necessary corporate action of the Company and the Securities have been duly executed by the Company, and (b) 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.
(vi) The Registration Statement has become effective under the Securities Act. With the consent of the Representatives, based solely on a telephonic confirmation by a member of the Closing Date staff of the Commission and review of a certificate of an opinion officer of the Company as to factual matters, such firm confirms that no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act and statement 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) under the Securities Act.
(vii) The Registration Statement at June 7, 2012, including the information deemed to be a part thereof pursuant to Rule 430B under the Securities Act, and the Prospectus, as of Xxxxxxthe date of the Prospectus Supplement, Xxxxx & Xxxxxxx LLPeach appeared on its face to be appropriately responsive in all material respects to the applicable form requirements for registration statements on Form S-3 under the Securities Act and the Securities Act Regulations; it being understood, counsel for the Underwritershowever, dated the Closing Date, that such firm need express no view 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 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.
(gviii) The Underwriters shall have receivedstatements in the General Disclosure Package and the Prospectus under the captions “Description of the Notes” and “Description of Debt Securities,” insofar as they purport to describe or summarize certain provisions of the documents referred to therein, are accurate descriptions or summaries in all material respects.
(ix) The issue and sale of the Securities being delivered on each of the date hereof by the Company to you and the Closing Date, a letter dated other Underwriters pursuant to this Agreement and the compliance by the Company with the provisions of this Agreement and the Indenture do not on the date hereof hereof:
(1) violate the Company’s Governing Documents (as defined therein); or
(2) result in the breach of or a default under any of the indentures relating to, or Officers’ Certificates establishing the terms of, the Company’s 5.80% Notes due 2012, 5.625% Notes due 2014, 6.25% Notes due 2014, 3.00% Second Series Notes due 2014, 3.400% Notes due 2016, 6.35% Notes due 2017, 5.000% Notes due 2019, 3.950% Notes due 2020, 4.750% Notes due 2021, 7.45% Senior Debentures due 2027 or 7.25% Debentures due 2031, the Credit Agreement dated as of June 1, 2011 among the Company and Canada Safeway Limited, as borrowers, and a consortium of banks led by Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx Incorporated and X.X. Xxxxxx Securities LLC, as joint bookrunners and joint lead arrangers, as amended, or the Closing DateTerm Credit Agreement dated as of December 19, 2011 among the Company, as borrower, and a consortium of banks led by Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx Incorporated and X.X. Xxxxxx Securities LLC, as joint bookrunners and joint lead arrangers, as amended (if applicable); 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.
(x) 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 to the applicable form 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 view 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 by reference in the Registration Statement, the Time of Sale Prospectus and preliminary prospectus 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 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.
(c) The Underwriters shall have received on the Closing Date an opinion and statement of (i) Xxxxxxx Xxxxxxx Xxxxxx Xxxxx Xxxxxxxx Xxxxxx & Xxxxxxx LLPXxxxxxx, L.L.P., outside counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit A B hereto, (ii) Xxxx Xxxxxx Child & Xxxxxxx, P.A., outside counsel for the Company, to the effect set forth in Exhibit C hereto and (iii) Wachtell, Lipton, Xxxxx & Xxxx LLP, special outside counsel for the Company, to the effect set forth in Exhibit D hereto, each dated the Closing Date.
(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 E 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 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, all executive officers and each officer and director all 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 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 subsidiariesPartnership Entities, taken as a whole, from that set forth in the Time of Sale Prospectus Pricing Disclosure Package as of the date of this Agreement Execution Time that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Offered Shares Notes on the terms and in the manner contemplated in the Time of Sale ProspectusPricing Disclosure Package.
(b) The Underwriters Subsequent to the execution and delivery of this Agreement, if any debt securities of the Partnership Parties are rated by any “nationally recognized statistical rating organization,” as that term is defined by the Commission for purposes of Section 3(a)(62) of the Exchange Act, (i) no downgrading shall have received on occurred, and no notice shall have been given of any intended or potential downgrading in the Closing Date a certificaterating accorded such debt securities (including the Notes) and (ii) no such organization shall have publicly announced that it has under surveillance or review, dated with possible negative implications, its rating of any securities (including the Closing Date and signed by an executive officer Notes) of any 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 threatenedPartnership Parties.
(c) The Underwriters Partnership and the Trustee shall have received on executed and delivered the Closing Date an opinion Indenture and statement of Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP, outside counsel for the Company, dated Partnership shall have executed and delivered the Closing Date, to the effect set forth in Exhibit A heretoNotes.
(d) The Underwriters shall have received on the Closing Date an opinion a certificate of Xxxxxx & Xxxxxxx P.Cthe Partnership, Xxxxxxxx Islands counsel for signed on behalf of the CompanyPartnership by the Treasurer of GP LLC, dated the Closing Date, to the effect that the signer of such certificate has carefully examined the Registration Statement, the Pricing Disclosure Package, the Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Notes, and this Agreement and that:
(i) the representations and warranties of the Partnership Parties 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 Partnership has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Partnership’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus, there has been no Material Adverse Effect, except as set forth in Exhibit B heretoor contemplated in the Pricing Disclosure Package and the Prospectus.
(e) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx Gxxxxx, Dxxx & Xxxxxx Cxxxxxxx LLP, special U.S. maritime environmental counsel and Liberian outside counsel for the CompanyPartnership, dated the Closing Date, in form and substance reasonably satisfactory to the effect set forth Manager, substantially in Exhibit C heretothe form previously delivered to the Manager.
(f) The Underwriters shall have received on the Closing Date an opinion and statement of Vxxxxxx Xxxxxx, Xxxxx & Xxxxxxx LLPan Associate General Counsel of Enbridge (U.S.) Inc., dated the Closing Date, in form and substance reasonably satisfactory to the Manager, substantially in the form previously delivered to the Manager.
(g) The Underwriters shall have received from Bxxxx Bxxxx L.L.P., counsel for the Underwriters, such opinion or opinions, dated the Closing DateDate and addressed to the Manager, with respect to such the issuance and sale of the Notes, the Registration Statement, the Pricing Disclosure Package and the Prospectus (together with any supplement thereto) and other related matters as the Manager may be requested by reasonably require, and the UnderwritersPartnership Parties shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(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 Pricing Disclosure Package 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.
(hi) 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 letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from PricewaterhouseCoopers LLP, independent public accountants, containing statements and information of the Underwriters type ordinarily included in accountants’ “comfort letters” 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 underwriters with respect to the good standing of financial statements and certain financial information contained in the CompanyRegistration Statement, the due authorization Pricing Disclosure Package and issuance of the Optional Shares to be sold Prospectus; provided that the letter delivered on such Option the Closing Date and other matters related to shall use a “cut off date” not earlier than the issuance of such Optional Sharesdate hereof.
Appears in 1 contract
Samples: Underwriting Agreement (Spectra Energy Partners, LP)
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 [_____] 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) 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 Sections 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 Cxxxxx LLP, outside counsel for the Company, dated the Closing Date, in form and substance reasonably satisfactory to the effect set forth in Exhibit A hereto.Underwriters:
(d) The Underwriters shall have received on the Closing Date an opinion and negative assurance letter of Xxxxxx Lxxxxx & Xxxxxxx P.CWxxxxxx LLP, Xxxxxxxx Islands counsel for the CompanyUnderwriters, 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 Gxxxxxx Procter LLP, special U.S. maritime environmental counsel and Liberian intellectual property counsel for certain Intellectual Property licensed to the Company, dated as of the Closing Dateclosing 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 Hxxxx, Pxxxxx & MxXxxxxx, P.C., regulatory counsel to the Company, dated as of the closing date, in form and statement substance reasonably satisfactory to the Underwriters. With respect to the negative assurance letters to be delivered pursuant to Sections 5(c) and 5(d) above, Cxxxxx LLP and Lxxxxx & Wxxxxxx LLP may state that their opinions and beliefs are based upon their participation in the preparation of Xxxxxxthe Registration Statement, Xxxxx & Xxxxxxx 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 Cxxxxx LLP, counsel for Gxxxxxx Procter LLP and Hxxxx, Pxxxxx & MxXxxxxx, P.C. described in Section 5(c), 5(e) and 5(f) above shall be rendered to the Underwriters, dated Underwriters at the Closing Date, with respect to such matters as may be requested by request of the UnderwritersCompany 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 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 A hereto, between you the Representatives 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 Representatives on or before the date hereofhereof (the “Lock-up Agreements”), 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 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 5(b) hereof remains true and correct as of such Option Closing Date;
(ii) an opinion and negative assurance letter of Cxxxxx 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 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(d) hereof;
(iv) an opinion of Gxxxxxx Procter LLP, intellectual property counsel for certain Intellectual Property, 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) an opinion of Hxxxx, Pxxxxx & MxXxxxxx, P.C., regulatory counsel to 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(f) hereof;
(vi) 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(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
(vii) 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 of such Optional Additional Shares.
Appears in 1 contract
Samples: Underwriting Agreement (Alumis Inc.)
Conditions to the Underwriters’ Obligations. The obligation of the Selling Shareholders 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 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 to Integrity, National Integrity or 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, acting in such capacity but not personally, 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 shall have received on the Closing Date an opinion and statement of Xxxxxx Xxxxx Xxxxxxxx Shearman & Xxxxxxx LLPSterling (which opinion shall not be required to cover any insurance laws, rules, regulations or statutes), 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.that:
(i) FINRA shall have raised no objection the Company is a corporation duly incorporated and validly existing in good standing under the laws of the State of Delaware, with corporate power and authority under such laws to own, lease and operate its property and conduct its business as described in the Prospectus, except to the fairness extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the Company and reasonableness its subsidiaries, taken as a whole;
(ii) National Integrity is a corporation duly incorporated and validly existing in good standing under the laws of the underwriting terms State of New York, with the corporate power and arrangements.authority under such laws to own, lease and operate its property and conduct its business as described in the Prospectus, 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;
(jiii) The “lock-up” agreements, each substantially in the form of Exhibit D hereto, between you and Genco and each officer and director authorized capital stock of the Company relating conforms in all material respects as to sales and certain other dispositions of legal matters to the description thereof contained in the Prospectus;
(iv) the outstanding shares of Common Stock or certain other securities, delivered to you on or before (including 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 by the Selling Shareholders) have been duly authorized and other matters related are validly issued, fully paid and non-assessable;
(v) this Agreement has been duly authorized, executed and delivered by the Company;
(vi) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement will not contravene any provision of the laws of the State of New York, the General Corporation Law of the State of Delaware or the Federal laws of the United States or the certificate of incorporation or by-laws of the Company or, to the issuance of such Optional Shares.the
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 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) no stop order suspending the effectiveness of either 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 (iii) 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 Xxxx & 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 and counsel for the Underwriters.
(d) The Underwriters shall have received on the Closing Date an opinion and negative assurance letter of Xxxxxx & Xxxxxxx P.CLLP, Xxxxxxxx Islands counsel for the CompanyUnderwriters, 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 Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, special U.S. maritime environmental counsel and Liberian outside intellectual property counsel for the Company, dated the Closing Date, in form and substance reasonably satisfactory to the effect set forth Representatives and counsel for the Underwriters. With respect to the opinions and negative assurance letters to be delivered pursuant to Sections 5(c), 5(d) and 5(e) above, Xxxxx Xxxx & Xxxxxxxx LLP, Xxxxxx LLP and Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP may state that their opinions and beliefs are based upon their participation in Exhibit C heretothe 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. The opinions of Xxxxx Xxxx & Xxxxxxxx LLP, Xxxxxx LLP and Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP described in Sections 5(c), 5(d) and 5(e) above shall be rendered to the Underwriters at the request of the Company and shall so state therein.
(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 four days prior to the date hereof.
(hg) The Offered Shares chief financial officer of the Company shall have been approved for listing delivered to the Underwriters, on each of the date hereof and on the NYSEClosing Date, a certificate in a form and satisfactory evidence thereof shall have been provided substance reasonably acceptable to youthe Representatives.
(i) FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(jh) 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. .
(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 Xxxxx Xxxx & Xxxxxxxx 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 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) an opinion and negative assurance letter of Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, outside 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(e) hereof;
(v) a letter dated the Option Closing Date, in form and substance satisfactory to the Underwriters, from Deloitte & Touche 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 four business days prior to the date hereof;
(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(g) 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 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 or inadvisable 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 Xxxxxxxx Xxxxx & Xxxxxxxx & Xxxxxxx LLP, outside counsel for the Company, dated the Closing Date, substantially in the form separately provided to the effect set forth in Exhibit A heretoUnderwriters’ counsel.
(d) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxxx P.CXxxxx X. Xxxxxx, Xxxxxxxx Islands counsel for Xx., General Counsel of the Company, dated the Closing Date, substantially in the form separately provided to the effect set forth in Exhibit B heretoUnderwriters’ counsel.
(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, 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 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 three business days prior 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 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 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 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 of Mintz, Levin, Cohn, Ferris, Glovsky and statement of Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLPPopeo, P.C., outside counsel for the Company, dated the Closing Date, to the effect set forth that:
(i) the Company has been duly incorporated, is validly existing as a corporation in Exhibit A heretogood standing under the laws of the jurisdiction of its incorporation, has the corporate power and authority to own its property and to conduct the business in which it is engaged as described in the Prospectus and is in good standing in Utah, the only jurisdiction in which the Company owns real estate or leases property;
(ii) each subsidiary of 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 as described in the Prospectus and is duly qualified to transact the business in which it is engaged as described in the Prospectus and is in good standing in Utah, the only jurisdiction in which the Company owns real estate or leases property;
(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 prior to the issuance of the Shares have been duly authorized and are validly issued, fully paid and non-assessable;
(v) all of the issued shares of capital stock of each subsidiary of the Company have been duly authorized and validly issued, are fully paid and non-assessable and are owned directly by the Company, free and clear of all liens, encumbrances, equities or claims;
(vi) the Shares 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;
(vii) this Agreement has been duly authorized, executed and delivered by the Company;
(viii) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement will not contravene any provision of applicable law or the certificate of incorporation or 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 agency is required for the performance by the Company of its obligations under this Agreement, except such as may be required by the securities or Blue Sky laws of the various states or foreign jurisdictions (with respect to which such counsel expresses no opinions) in connection with the offer and sale of the Shares;
(ix) the statements (A) in the Prospectus under the captions "Description of Common Stock," "Plan of Distribution," and "Underwriter" and (B) in the Registration Statement in Item 15, in each case insofar as such statements constitute summaries of the legal matters, documents or proceedings referred to therein, fairly present in all material respects the information called for with respect to such legal matters, documents and proceedings and fairly summarize the matters referred to therein;
(x) to such counsel's knowledge, there are no 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 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;
(xi) the Company is not and, after giving effect to the offering and sale of the Shares and the application of the proceeds thereof as described in the Prospectus, will not be required to register as an "investment company" as such term is defined in the Investment Company Act of 1940, as amended; and
(xii) such counsel (A) is of the opinion that each document, if any, filed pursuant to the Exchange Act and incorporated by reference in the Registration Statement and the Prospectus (except for financial statements and schedules and other financial and statistical data included herein 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 applicable rules and regulations of the Commission thereunder, (B) is of the opinion that the Registration Statement and Prospectus (except for financial statements and schedules and other financial and statistical data derived therefrom as to which such counsel need not express any opinion) comply as to form in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder, (C) has no reason to believe that (except for financial statements and schedules and other financial and statistical data derived therefrom as to which such counsel need not express any opinion) the Registration Statement and the Prospectus included therein 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 and (D) has no reason to believe that (except for financial statements and schedules and other financial and statistical data as to which such counsel need not express any belief) the Prospectus contains any untrue statement of a material fact 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.
(d) The Underwriters Underwriter shall have received on the Closing Date an opinion of Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxxx P.CXxxxxx, Xxxxxxxx Islands Professional Corporation, counsel for the CompanyUnderwriter, dated the Closing Date, covering the matters referred to in Sections 5(c)(vi), 5(c)(vii), 5(c)(ix) (but only as to the effect set forth statements in Exhibit B heretothe Prospectus under "Description of Common Stock" and "Underwriter," except as to paragraphs eight and nine of such section) and clauses (B) and (D) of 5(c)(xiii) above. With respect to subparagraph (xiii) of paragraph (c) above, Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. may state that its opinion and belief are based upon its participation in the preparation of the Registration Statement and Prospectus and any amendments or supplements thereto and documents incorporated by reference and review and discussion of the contents thereof, but is without independent check or verification, except as specified. With respect to clauses (B) and (D) of subparagraph (xiii) of paragraph (c) above, Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation, may state that its opinion and belief are based upon its participation in the preparation of the Prospectus and any amendments or supplements thereto (other than the documents incorporated by reference) and upon review and discussion of the contents thereof (including documents incorporated by reference), but are without independent check or verification, except as specified. The opinion of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. described in Section 5(c) above shall be rendered to the Underwriter at the request of the Company and shall so state therein.
(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 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, Date in form and substance satisfactory to the UnderwritersUnderwriter, 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 in, or incorporated by reference into, 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.
(hf) 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 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. .
(g) The several obligations of the Underwriters to purchase Optional Shares hereunder are subject Company shall have delivered all other certificates as may be reasonably requested by Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation, counsel 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 SharesUnderwriter.
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 each of 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 each of 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)(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 U.S. counsel for the Company, dated the Closing Date, 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.CXxxxxxx, Xxxxxxxx Islands Bermuda counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit B hereto.Annex B.
(e) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxx LLPXxxxxxxxxxx, special U.S. maritime environmental counsel and Liberian general counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit C hereto.Annex D.
(f) The Underwriters shall have received on the Closing Date an opinion and statement of Weil, Gotshal & Xxxxxx LLP, counsel for the Selling Shareholders specified in Schedule IV under the heading “Selling Shareholder 1”, dated the Closing Date, to the effect set forth in Annex E.
(g) The Underwriters shall have received on the Closing Date an opinion of Muhammad Uteem, Barrister of Uteem Xxxxxxxx, Mauritius counsel for the Selling Shareholders specified in Schedule IV under the heading “Selling Shareholder 1”, dated the Closing Date, to the effect set forth in Annex F.
(h) The Underwriters shall have received on the Closing Date an opinion of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, counsel for the Selling Shareholder specified in Schedule IV under the headings “Selling Shareholder 2”, dated the Closing Date, to the effect set forth in Annex G.
(i) The Underwriters shall have received on the Closing Date an opinion of Xxxxxxx Xxxx & Xxxxxxx, Bermuda counsel for the Selling Shareholder specified in Schedule IV under the headings “Selling Shareholder 2”, dated the Closing Date, to the effect set forth in Annex H.
(j) The Underwriters shall have received on the Closing Date an opinion of Xxxxx Xxxxxx, counsel for the Selling Shareholder specified in Schedule IV under the headings “Selling Shareholder 3”, dated the Closing Date, to the effect set forth in Annex I.
(k) The Underwriters shall have received on the Closing Date an opinion of Mauritius counsel for the Selling Shareholder specified in Schedule IV under the headings “Selling Shareholder 3”, dated the Closing Date, to the effect set forth in Annex J.
(l) The Underwriters shall have received on the Closing Date an opinion of Xxxxx Xxxx & Xxxxxxx LLPXxxxxxxx, U.S. counsel for the Underwriters, dated the Closing Date, in form and substance satisfactory to the Underwriters. With respect to Section 6(c) above, Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and 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 specified. With respect to Section 6(f) above, Xxxxxx Xxxxxxxxxxx, general counsel for the Company, may rely upon an opinion or opinions of local counsel for the Company; provided that (A) each such local counsel for the Company 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, and (C) Xxxxxx Xxxxxxxxxxx, general counsel for the Company, shall state in such opinion that he is justified in relying on each such other opinion. With respect to Sections 6(g) and 6(i) above, Weil, Gotshal & Xxxxxx LLP, Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP and Xxxxx Xxxxxx may rely upon an opinion or opinions of counsel for any Selling Shareholders and, with respect to factual matters and to the extent such matters counsel deems appropriate, upon the representations of each Selling Shareholder contained herein 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 any such other documents and instruments shall be delivered to you and shall be in form and substance satisfactory to your counsel and (D) Weil, Gotshal & Xxxxxx LLP, Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP and Xxxxx Xxxxxx shall state in their opinion that they are justified in relying on each such other opinion. The opinions of Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP, Xxxxxxx, Xxxxxx Xxxxxxxxxxx, general counsel for the Company, Weil, Gotshal & Xxxxxx LLP, Muhammad Uteem, Barrister of Uteem Chambers, Paul, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, Xxxxxxx Xxxx & Xxxxxxx, Xxxxx Xxxxxx and the Mauritius counsel described in Sections 6(c), 6(d), 6(e), 6(f), 6(g), 6(h), 6(i), 6(j) and 6(k) above (and any opinions of counsel for the Company or any Selling Shareholder referred to in the immediately preceding paragraph) 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 requested by the Underwritersbe, and shall so state therein.
(gm) 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 LLPKPMG, independent 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.
(jn) The “lock-up” agreements, (i) each substantially in the form of Exhibit A hereto, between you and the persons set forth in Schedule IV under the headings “Officers” and “Directors” and (ii) substantially in the form of Exhibit B hereto, between you and the persons set forth in Schedule IV under the heading “Selling Shareholder 1” and (iii) substantially in the form of Exhibit C hereto, between you and the persons set forth in Schedule IV under the heading “Selling Shareholder 2” and (iv) substantially in the form of Exhibit D hereto, between you and Genco and each officer and director of the Company persons set forth in Schedule IV under the heading “Selling Shareholder 3”, 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. .
(o) The Underwriters shall have received from the chief financial officer of the Company a certificate to the effect as set forth in Exhibit E. 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 (Genpact LTD)
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 obligation of the Underwriters Underwriter 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 Underwriter’s judgment, is material and adverse and that makes it, in your the Underwriter’s 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 Underwriter 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 Underwriter shall have received on the Closing Date an opinion and statement negative assurance letter of Xxxxxx Xxxxx Xxxxxxxx Ropes & Xxxxxxx Xxxx 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 heretoUnderwriter.
(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 Underwriter shall have received on the Closing Date an opinion and statement negative assurance letter of Xxxxxx, Xxxxx & Xxxxxxx Sidley Austin LLP, counsel for the UnderwritersUnderwriter, dated the Closing Date, with respect in a form acceptable to such matters as may be requested by the UnderwritersUnderwriter.
(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 & 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 Underwriter 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 .
(h) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the Underwriters underwriting or other arrangements of the transactions contemplated hereby.
(i) 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 Underwriter.
(j) 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 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 Underwriter 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.
(l) Counsel for the Underwriter 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 Underwriter, 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 Underwriter and counsel to the Underwriter.
(m) The obligation of the Underwriter to purchase Optional Shares Additional Securities hereunder are subject to the delivery to you the Underwriter 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 Ropes & Xxxx 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 the Underwriter;
(iii) an opinion of Sidley Austin LLP, counsel for the Underwriter, dated the Option Closing Date, relating to the Additional Securities to be purchased on such Option Closing Date in a form acceptable to the Underwriter;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Underwriter, from Withum, independent public accountants, substantially in the same form and substance as the letter furnished to the Underwriter 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
(v) such other 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 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 (Lefteris Acquisition Corp.)
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 Milbank, Tweed, Xxxxxx & XxXxxx LLP, 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 States of Delaware or New York and named in Schedule IV 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 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; 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 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;
(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 Prospectus.paragraph (viii);
(b2) The Underwriters shall have received on the Closing Date a certificateletter of Milbank, Tweed, Xxxxxx & XxXxxx LLP, 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 of Xxxxx X. Xxxxx, Senior Vice President and statement General Counsel of Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP, outside counsel for 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 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 delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
(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 occurred in the rating accorded the Company’s debt securities by any “nationally recognized statistical rating organization”, as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no objection to the fairness and reasonableness such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the underwriting terms and arrangementsCompany’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 Xxxx X. Xxxxxx, 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 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 business, operations or operations properties 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)(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 LLPDay, 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 Schedule III hereto. The opinion of Xxxxx Day described in this 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 of Xxxxxx & Xxxxxxx P.CXxxxxx LLP, Xxxxxxxx Islands special tax counsel for the Company, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriters, to the effect set forth in Exhibit B Schedule IV hereto. The opinion of Xxxxxx & Xxxxxx LLP described in this Section 5(d) 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 of Xxxxxx Smith, Anderson, Blount, Dorsett, Xxxxxxxx & Xxxxxx Xxxxxxxx, LLP, special U.S. maritime environmental counsel and Liberian North Carolina counsel for the Company, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriters, to the effect set forth in Exhibit C Schedule V hereto. The opinion of Smith, Anderson, Blount, Dorsett, Xxxxxxxx & Xxxxxxxx, LLP described in this Section 5(e) shall be rendered to the Underwriters at the request of the Company and shall so state therein.
(f) The Underwriters shall have received on the Closing Date an opinion and statement of Xxxxxx, Xxxxx King & Xxxxxxx Spalding 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.
(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 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, in form and substance satisfactory evidence thereof shall have been provided to youthe Underwriters, from the Chief Financial Officer of the Company, as to certain financial information included in the Registration Statement, the Time of Sale Prospectus and the Prospectus.
(i) FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(j) The “lock-uplock‑up” agreements, each substantially in the form of Exhibit D A 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 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. .
(j) 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 shall have received 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 Firm Shares and other matters related to the issuance of the Firm Shares.
(k) The Shares shall have been approved for listing on the New York Stock Exchange, subject only to notice of issuance.
(l) The several obligations of the Underwriters to purchase 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 Xxxxx Day, 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 & Xxxxxx LLP, special tax 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 Smith, Anderson, Blount, Dorsett, Xxxxxxxx & Xxxxxxxx, LLP, North Carolina 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(e) hereof;
(v) an opinion of King & Spalding 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;
(vii) a certificate, dated the Option Closing Date and signed by the Chief Financial Officer of the Company, as to certain financial information included in the Registration Statement, the Time of Sale Prospectus and the Prospectus; 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 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 Selling Stockholders to sell the Shares to the Underwriter and the 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 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 consolidated 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.;
(bi) 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 Section 1 of 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. ;
(ii) The Underwriter shall have received on the Closing Date a certificate, dated the Closing Date from each Selling Stockholder signed by an officer signing of the general partner of each Selling Stockholder, to the effect that the representations and delivering warranties of such certificate may rely upon Selling Stockholder contained in Section 2 of this Agreement are true and correct as of the best Closing Date and that each Selling Stockholder has complied with all of his the agreements and satisfied all of the conditions on its part to be performed or her knowledge as to proceedings threatenedsatisfied hereunder on or before the Closing Date.
(c) The Underwriters Underwriter shall have received on the Closing Date an opinion and statement of Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLPJxxxx Xxxxxx, outside Esq., general counsel for of the Company, dated the Closing Date, to the effect set forth that:
(i) Each of the Company and DMC has been duly incorporated, is validly existing as a corporation in Exhibit A heretogood standing under the laws of its jurisdiction of incorporation, has corporate power to own its properties and to conduct its business as described in the Prospectus;
(ii) Each of the Company and DMC 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 consolidated subsidiaries, taken as a whole;
(iii) The Company has the corporate power to enter into this Agreement and to perform its obligations hereunder;
(iv) the Shares have been duly authorized by all necessary corporate action of the Company, have been validly issued by the Company and are fully paid and nonassessable; and the holders of outstanding shares of capital stock of the Company are not entitled to any preemptive or similar rights to subscribe for the Shares under the Certificate of Incorporation or Bylaws of the Company or the laws of the State of Delaware;
(v) all of the issued shares of capital stock of DMC have been duly and validly authorized and issued and are fully paid and non-assessable and are owned, directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims, except for the lien granted to Bank of America, NA as Collateral Agent pursuant to the Security Agreement dated December 20, 2002, or as described in the Prospectus;
(vi) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company, and this Agreement has been duly executed and delivered by the Company;
(vii) the information incorporated by reference in the Prospectus relating to the description of the Shares, insofar as such information purports to summarize certain provisions of the Common Stock and the Certificate of Incorporation and Bylaws of the Company, provides a fair summary of such provisions;
(viii) the Company is not an “investment company” as such term is defined in the Investment Company Act of 1940, as amended;
(A) the Registration Statement (except the financial statements and schedules and other financial data included therein, as to which such counsel need express no view), at the time it became effective, and the Prospectus (except as aforesaid), as of the date thereof, appeared on their face to be appropriately responsive in all material respects to the requirements of the Securities Act and the rules and regulations of the Commission thereunder, and such counsel knows of no contracts or other documents of a character required to be filed as exhibits to the Registration Statement or required to be described in the Registration Statement or the Prospectus that are not so filed or described as required; (B) no information has come to the attention of such counsel that causes it to believe that the Registration Statement (except the financial statements and schedules and other financial data included therein, as to which such counsel need express no view), as of the date of this Agreement, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and (C) no information has come to the attention of such counsel that causes it to believe that the Prospectus (except the financial statements and schedules and other financial data included therein, as to which such counsel need express no view), as of the date thereof or the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. In rendering such opinion, Mx. Xxxxx Xxxxxx may state that his opinion is limited to matters governed by the Federal laws of the United States of America and the laws of the State of California and the General Corporation Law of Delaware and that such counsel is not admitted in Delaware. With respect to Section 6(c)(ix) above, Mx. Xxxxx Xxxxxx may state that his opinion and belief are based upon his 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.
(d) The Underwriters Underwriter shall have received on the Closing Date an opinion of Xxxxxx Gxxxxx, Dxxx & Xxxxxxx P.CCxxxxxxx LLP, Xxxxxxxx Islands outside counsel for of the Company, dated the Closing Date, to the effect that:
(i) Each of the Company and DMC is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation and has all requisite corporate power to own its properties and to conduct its business as described in the Prospectus (including the incorporated documents);
(ii) The Underwriting Agreement has been duly authorized, executed and delivered by the Company;
(iii) The Shares have been duly authorized by all necessary corporate action of the Company, have been validly issued by the Company and are fully paid and nonassessable; and the holders of outstanding shares of capital stock of the Company are not entitled to any preemptive or similar rights to subscribe for the Shares under the Certificate of Incorporation or Bylaws of the Company or the laws of the State of Delaware; and
(iv) In the course of the preparation by the Company of the Registration Statement and the Prospectus (not including the incorporated documents), they participated in conferences with representatives of the Company and their independent accountants at which conference the contents of the Registration Statement, Prospectus and related matters were discussed and have read each document filed under the Securities Exchange Act of 1934, as amended (“Exchange Act") and incorporated by reference in the Registration Statement and the Prospectus. Because the purpose of such counsel’s professional engagement was not to establish or confirm factual matters and because the scope of their examination of the affairs of the Company did not permit them to verify the accuracy completeness or fairness of the statements set forth in Exhibit B heretothe Registration Statement and Prospectus, except as specifically noted herein, such counsel are not passing upon and do not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus and such counsel make no representation, express or implied, that they have independently verified the accuracy, completeness or fairness of such statements. However, based on and subject to the foregoing, (A) such counsel believes the Registration Statement, at the time it became effective, and the Prospectus, as of the date thereof, complied as to form in all material respects to the requirements of the Securities Act and the rules and regulations of the Commission thereunder; (B) no facts have come to their attention that would lead them to believe that the Registration Statement, as of the date of this Agreement, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and (C) no facts have come to their attention that would lead them to believe that the Prospectus, as of the date thereof or the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that, with respect to clauses (A), (B) and (C), such counsel need express no opinion or belief as to the financial statements, schedules or other financial or statistical data or any similar information contained in or incorporated by reference in or omitted from the Registration Statement or the Prospectus.
(e) The Underwriters Underwriter shall have received on the Closing Date an opinion of Xxxxxx Cleary, Gottlieb, Sxxxx & Xxxxxx LLPHxxxxxxx, special U.S. maritime environmental counsel and Liberian counsel for the CompanySelling Stockholders, dated the Closing Date, to the effect that:
(i) Each of the Selling Stockholders has been duly formed as a limited partnership under the Delaware Revised Uniform Limited Partnership Act, 6 Del. C. §§ 17-101 et. seq. (the “Delaware Partnership Act”) and is validly existing and in good standing as a limited partnership under the laws of the State of Delaware;
(ii) Each of the Selling Stockholders has the partnership power to enter into this Agreement and to perform its obligations thereunder;
(iii) The execution and delivery of this Agreement have been duly authorized by all necessary limited partnership action of each of the Selling Stockholders, and this Agreement has been duly executed and delivered by each of the Selling Stockholders.
(iv) The execution and delivery by each of the Selling Stockholders of this Agreement does not, and the performance by each of the Selling Stockholders of its obligations thereunder will not, (a) require any consent, approval, authorization, registration or qualification of or with any governmental authority of the United States of America or the State of New York that in the experience of such counsel normally would be applicable to general business entities with respect to such execution, delivery and performance, except such as have been obtained or effected under the Securities Act and the Exchange Act (but such counsel need express no opinion as to any state securities or Blue Sky laws), (b) result in a breach of any of the terms and provisions of, or constitute a default under, any of the constituent documents of such Selling Stockholder identified in Exhibit A thereto or (c) result in a violation of any United States federal or New York State law, provision of the Delaware Partnership Act or published rule or regulation that in such counsel’s experience normally would be applicable to general business entities with respect to such execution, delivery and performance (but the counsel need express no opinion relating to the United States federal securities laws or any state securities or Blue Sky laws).
(v) Assuming that (A) The Depository Trust Company (“DTC”) is a “clearing corporation” as defined in Section 8-102(a)(5) of the Uniform Commercial Code as in effect in the State of New York (the “UCC”) and (B) the Underwriter acquires its interest in the Shares to be sold by the Selling Stockholders to the Underwriter without notice of any adverse claim (within the meaning of the UCC) and the Underwriter has paid the purchase price for such Shares and has had such Shares credited to the securities account of the Underwriter maintained with DTC, then such Underwriter will have a securities entitlement (as defined in Section 8-102(a)(17) of the UCC) to such Shares purchased by the Underwriter and no action based on an adverse claim may be asserted against the Underwriter with respect to such securities entitlement. In rendering such opinion, Cleary, Gottlieb, Sxxxx & Hxxxxxxx may (x) limit the opinion in Section 6(e)(iv) above to those documents received by counsel set forth in Exhibit C heretoan exhibit to the opinion (which constituent documents shall be certified as true, complete and correct copies by the Selling Stockholders or their affiliates) and (y) state that its opinion is limited to matters governed by the Federal laws of the United States of America and the laws of the State of New York, the Delaware Revised Uniform Limited Partnership Act and the General Corporation Law of Delaware and that such counsel is not admitted in Delaware.
(f) The Underwriters Underwriter shall have received on the Closing Date an opinion and statement of Xxxxxx, Xxxxx Shearman & Xxxxxxx Sterling LLP, counsel for the UnderwritersUnderwriter, dated the Closing Date, with respect to such matters as the Underwriter may be requested by the Underwritersreasonably require.
(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 each of KPMG LLP, independent public accountants, and PricewaterhouseCoopers LLC, independent auditors, 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-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 furnished to the fairness and reasonableness of the underwriting terms and arrangements.
(j) The “lock-up” agreements, each substantially Underwriter an agreement in the form of Exhibit D heretoA hereto from TPG Partners L.P. and TPG Parallel I, between you L.P. 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, such agreement 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 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)(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 Xxxx & Xxxxxxxx & Xxxxxxx LLP, outside counsel for the Company, dated the Closing Date, in a form satisfactory to the Underwriters and to the effect set forth in Exhibit A hereto.B; the Underwriters shall have received on the Closing Date an opinion of in-house counsel for the Company, dated the Closing Date, in a form satisfactory to the Underwriters and to the effect set forth in Exhibit C.
(d) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx Xxxxxxx 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 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. 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 letters dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Deloitte PricewaterhouseCoopers LLP (with respect to the historical and pro forma financial information of the Company in the Registration Statement, any preliminary prospectus, the Time of Sale Prospectus and the Prospectus) and Ernst & Touche LLPYoung LLP (with respect to the historical financial information of TWG in the Registration Statement, any preliminary prospectus, the Time of Sale Prospectus and the Prospectus), 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.
(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 relating to sales and certain other dispositions of shares of Common Stock, Mandatory Convertible Preferred 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 Company shall have filed the requisite listing application with NYSE for the listing of the Shares and the Maximum Number of Conversion Shares.
(h) The Certificate of Designations shall have been duly authorized, executed and delivered by the Company and filed with the Secretary of State of the State of Delaware and shall have become effective.
(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 Xxxxx Xxxx & Xxxxxxxx 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; an opinion of in-house 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 Xxxxxxx Xxxxxxx & Xxxxxxxx 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) letters dated the Option Closing Date, in form and substance satisfactory to the Underwriters, from PricewaterhouseCoopers LLP and Ernst & Young LLP, each 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 three 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 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 Partnership Entities 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) except as set forth in or contemplated by the Time of Sale Prospectus, as of the date of this Agreement, there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, condition or in the earnings, business or operations of the Company and its subsidiariesPartnership 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 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 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 on behalf of the Company, MLP GP by the Chief Executive Officer and Chief Financial Officer of the MLP GP with respect to the effect set forth entities covered by the certificate, stating that:
(i) the representations, warranties and agreements of the Partnership Parties in Section 5(a)(i) above and to the effect that the representations and warranties 1 of the Company contained in this Agreement are true and correct on and as of the Closing Date Date, and that the Company has complied with all of the agreements and Partnership Parties have satisfied all of the conditions on its their part to be performed or satisfied hereunder on at or before prior to the Closing Date. The officer signing ;
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued; and delivering no proceedings or examination for that purpose have been instituted or, to the knowledge of such certificate may rely upon officers, threatened;
(iii) since the best date of his the most recent financial statements included in the Time of Sale Prospectus, there have been no occurrences which, individually or her knowledge in the aggregate, could reasonably be expected to result in a Material Adverse Effect; and
(iv) they have carefully examined the Registration Statement, the Time of Sale Prospectus and the Prospectus, and, in their opinion, (A) (1) the Registration Statement, as of its effective date and as of the Closing Date, (2) the Time of Sale Prospectus, as of the Time of Sale, and (3) the Prospectus, as of the date of the Prospectus and as of the Closing Date, did not and do not contain any untrue statement of a material fact and did not and do not omit to proceedings threatenedstate a material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration Statement, in the light of the circumstances under which they were made) not misleading, and (B) since the Registration Statement’s effective date, no event has occurred that should have been set forth in a supplement or amendment to the Registration Statement, the Prospectus or any free writing prospectus that has not been so set forth.
(c) The Underwriters shall have received on the Closing Date an opinion and statement of Xxxxxx Xxxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP, outside counsel for the CompanyPartnership, 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.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 LLPL.L.P., counsel for the Underwriters, dated the Closing Date, covering such matters with respect to such the issuance and sale of the Units, the Registration Statement, the Time of Sale Prospectus and the Prospectus and other related matters as the Managers may be requested by reasonably require, and the UnderwritersPartnership Entities shall have furnished to such counsel such documents as they may request for the purpose of enabling 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 Ernst & Touche Young LLP, independent public accountants, containing statements and information stating, as of the type date hereof or the Closing Date, as the case may be (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Preliminary Prospectus, as of a date not more than three days prior to the date hereof or the Closing Date, as the case may be), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily included in covered by accountants’ “comfort letters” to underwriters in connection 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 hereofregistered public offerings.
(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 El Paso, El Paso LLC, Holdings, MLP GP and each officer and director of the Company MLP GP relating to sales and certain other dispositions of shares Units of Common Stock Units 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 Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed on behalf of (i) the MLP GP and the Partnership by the Chief Executive Officer and Chief Financial Officer of the MLP GP and (ii) El Paso by the Executive Vice President and General Counsel of El Paso, in each case with respect to the entities covered by the certificate, stating that the SNG Acquisition shall be consummated as soon as practicable, but in no event later than two days following the Closing Date, and there will be no material closing conditions to the closing of the SNG Acquisition that are outside the control of the Partnership or El Paso. The several obligations of the Underwriters to purchase Optional Shares Additional Units 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 CompanyPartnership Entities, the due authorization and issuance of the Optional Shares Additional Units to be sold on such Option Closing Date and other matters related to the issuance of such Optional SharesAdditional Units.
Appears in 1 contract
Samples: Underwriting Agreement (El Paso Pipeline Partners, L.P.)
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 Company, Xxxxxx Xxxxxxx or any of its their respective 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 Xxxxxx Xxxxxxx & Co. Incorporated’s judgment, is material and adverse and that makes it, in your Xxxxxx Xxxxxxx & Co. Incorporated’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 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. The executive officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened; and
(ii) a certificate, dated the Closing Date and signed by an executive officer 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.
(c) The Underwriters shall have received on the Closing Date an opinion and statement opinions, each dated the Closing Date, of Xxxxxx Xxxxx Xxxxxxxx Xxxx & Xxxxxxx LLPXxxxxxxx, outside counsel for the Company, dated substantially in the Closing Date, to the effect set forth in Exhibit A form attached as Exhibits B-1 and B-2 hereto.
(d) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxxx P.C, Xxxxxxxx Islands counsel for the Companyopinion, dated the Closing Date, to of Xxxxxxxxx X. Xxxxxx, General Counsel of the effect set forth Company, substantially in the form attached as Exhibit B C 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 Companyopinion, dated the Closing Date, to of Xxxxx Xxxx & Xxxxxxxx, counsel for the effect set forth Selling Shareholder, substantially in the form attached as Exhibit C D hereto.
(f) The Underwriters shall have received on the Closing Date an opinion and statement or opinions of Xxxxxx, Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxx Xxxxxxxx LLP, counsel for the Underwriters, dated the Closing Date, with respect to covering such matters as the Underwriters may reasonably request. The opinions described in Sections 6(c), 6(d) and 6(e) above shall be requested by rendered to the UnderwritersUnderwriters at the request of the Company or the Selling Shareholder as the case may be, 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 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.
(j) 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 set forth 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 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 (MSCI 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:
(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 an executive officer of each Selling Shareholder, to the effect that the representations and warranties of such Selling Shareholder contained in this 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 such 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 Shareholders, 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 & Xxxxxx (x) Xxxx Xxxxx LLP, special U.S. maritime environmental intellectual property counsel for the Company and Liberian (y) Xxxxx Lovells US LLP, 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 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-uplock‑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. .
(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 LLP, intellectual property counsel for the Company and (y) Xxxxx Lovells US 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 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) 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 Xxxxxx[ ], 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 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 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 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 (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 or the applicable 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 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 and on each Option Closing Date, if any, a certificate, dated the Closing Date or Option closing Date, as the case may be, 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 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 Datesuch 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 on been filed with the Closing Date an opinion Commission pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for such filing by the rules and statement regulations under the Securities Act; the final term sheet substantially in the form of Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLPSchedule III hereto, outside counsel 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 Company, dated effectiveness of the Closing DateRegistration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or, to the effect set forth in Exhibit A heretoCompany’s knowledge, 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 part of the Commission shall have been complied with to the Representatives’ reasonable satisfaction.
(d) The Underwriters shall have received on the Closing Date and on each Option Closing Date, if any, an opinion of Xxxxxx & Xxxxxxx P.CMiller, Xxxxxxxx Islands Canfield, Paddock and Stone, P.L.C., Troy, Michigan, outside counsel for the Company, dated the Closing Date or Option Closing Date, as the case may be, to the effect set forth in Exhibit B A hereto.
(e) The Underwriters shall have received on the Closing Date and on each Option Closing Date, if any, an opinion of Xxxxxx & Xxxxxx LLP, special U.S. maritime environmental counsel and Liberian counsel for the General Counsel or the Corporate Counsel of the Company, dated the Closing Date or Option Closing Date, as the case may be, to the effect set forth in Exhibit C B hereto.
(f) The Underwriters shall have received on the Closing Date and on each Option Closing Date, if any, an opinion and statement of Xxxxxx, Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxx Xxxxxxxx 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. The opinion of counsel for the Company described in Section 5(d) above shall be rendered to the Underwriters at the request of the Company and shall so state therein.
(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 each of Deloitte & Touche 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 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 C hereto, between you and Genco the Representatives and each executive officer and or 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, securities shall be in full force and effect on the Closing Date and each Option Closing Date, if any. 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 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
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters are subject subject, in their discretion, to the condition that the representations and warranties of the Issuers and the Guarantors contained in Section 1 of this Agreement are, at the date hereof and as of the Closing Date, true and correct, the condition that the Issuers and the Guarantors shall have performed all of its obligations hereunder theretofore to be performed, and the following additional 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 Issuers or any of its subsidiaries the Guarantors 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 Parent 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 each of the CompanyIssuers and each of the Guarantors, to the effect set forth in Section 5(a)(i5(a) above and to the effect that the representations and warranties of the Company Issuers and the Guarantors contained in Section 1 of this Agreement are true and correct as of the Closing Date and that the Company has Issuers and the Guarantors have complied with all of the agreements and satisfied all of the conditions on its their 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 of Xxxxxx & Xxxxxx L.L.P., outside counsel for the Issuers and the Guarantors, dated the Closing Date, in substantially the form attached hereto as Exhibit A and (ii) an opinion of Xxxxx Xxxxxx Xxxxxxxx & Xxxxxxx LLP, outside counsel for the CompanyOregon Guarantors, 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 & 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 covering such matters as the Representative may be requested by the Underwritersreasonably request.
(ge) 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 PricewaterhouseCoopers LLP, independent public accountantsaccountants of 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 3 days prior to the date hereofClosing Date.
(hf) The Offered Shares Issuers and the Guarantors shall have been approved for listing on executed and delivered the NYSEIndenture, in form and substance reasonably satisfactory to the Underwriters, and satisfactory evidence thereof the Underwriters shall have been provided received executed copies thereof and provide such other documents and certificates as the Underwriters may reasonably request. If any condition specified in this Section 5 is not satisfied when and as required to you.
(i) FINRA shall have raised no objection be satisfied, this Agreement may be terminated by the Representative by notice 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 Issuers at any time on or before the date hereof, shall be in full force and effect on 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 such documents as you may reasonably request with respect to the good standing of the Companyany party, the due authorization except that Sections 6(a)(ix), 7 and issuance of the Optional Shares to 10 hereof shall at all time be sold on such Option Closing Date effective and other matters related to the issuance of such Optional Sharesshall survive termination.
Appears in 1 contract
Samples: Underwriting Agreement (Cloud Peak Energy Resources LLC)
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) 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 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 (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, 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.
(hf) The Offered Shares Company shall have been approved entered into a Pledge and Escrow Agreement with the Escrow Agent and the Trustee in substantially the form of Exhibit C hereto, which shall provide for listing on the NYSE, deposit by the Company into the Escrow Account (as defined in the Pledge and satisfactory evidence thereof shall Escrow Agreement) of an amount of funds that the Underwriters have been provided determined is sufficient to youmake payments of the aggregate amount of the first six semi-annual interest payments payable to the holders of the Securities.
(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 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 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 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
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 solely 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, (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) under the Securities Act.
(vi) The Registration Statement at July 27, 2010, including the information deemed to be a part thereof pursuant to Rule 430B under the Securities Act, and the Prospectus, as of the date of the Prospectus Supplement, each appeared on its face to be appropriately responsive in all material respects to the Closing Date an opinion applicable form requirements for registration statements on Form S-3 under the Securities Act and statement of Xxxxxxthe Securities Act Regulations; it being understood, Xxxxx & Xxxxxxx LLPhowever, counsel for the Underwriters, dated the Closing Date, that such firm need express no view 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 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 receivedstatements in the General Disclosure Package and the Prospectus under the captions “Description of the Notes” and “Description of Debt Securities,” insofar as they purport to describe or summarize certain provisions of the documents referred to therein, are accurate descriptions or summaries in all material respects.
(viii) The issue and sale of the Securities being delivered on each of the date hereof by the Company to you and the Closing Date, a letter dated other Underwriters pursuant to this Agreement and the compliance by the Company with the provisions of this Agreement and the Indenture do not on the date hereof hereof:
(1) violate the Company’s Governing Documents (as defined therein); or
(2) result in the breach of or a default under any of the indentures relating to, or Officers’ Certificates establishing the terms of, the Company’s 5.80% Notes due 2012, 6.50% Notes due 2011, 7.25% Debentures due 2031, 4.950% Notes due 2010, 5.625% Notes due 2014, 6.35% Notes due 2017, 7.45% Senior Debentures due 2027, 6.25% Notes due 2014 or 5.00% Notes due 2019 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 to the applicable form 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 view 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 preliminary prospectus 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 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:
(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 subsidiariesCompany, 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 (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)(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 DateDate and (ii) a certificate, dated the Closing Date and signed by the chief financial officer of the Company, as to the Company’s cash, cash equivalents and short-term investments as of August 31, 2014 and cash expenditures from September 1, 2014 through the date hereof. 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 from Xxxxxx LLP, outside counsel to the Company, on the Closing Date (i) an opinion and statement of Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP(ii) a negative assurance letter, outside counsel for the Company, in each case dated the Closing Date, Date and 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 opinions of Xxxxxx Xxxxxxxx Xxxxxx, Xxxxxxx & Xxxxxxx P.CLLP and Xxxxxxxxxx Xxxxxxxx & Xxxxxxxx LLP, Xxxxxxxx Islands intellectual property counsel for the Company, in each case dated the Closing Date, Date and in form and substance reasonably satisfactory to the effect set forth in Exhibit B heretoRepresentatives.
(e) The Underwriters shall have received from Xxxxx Xxxx & Xxxxxxxx LLP, counsel to the Underwriters, on the Closing Date (i) an opinion and (ii) a negative assurance letter, each dated the Closing Date and in form and substance satisfactory to the Underwriters. Xxxxxx LLP, with respect to Section 5(c)(ii) above, 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 5(e)(ii) above, 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 review and discussion of the contents thereof (including documents incorporated by reference), but are without independent check or verification, except as specified. The opinion of Xxxxxx & Xxxxxx LLP, special U.S. maritime environmental counsel and Liberian counsel for the Company, dated the Closing Date, LLP described in Section 5(c) above shall be rendered to the effect set forth in Exhibit C heretoUnderwriters at the request of the Company and shall so state therein.
(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 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 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. .
(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 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) opinions of Xxxxxxxx Xxxxxx Xxxxxxx & Hampton LLP and Xxxxxxxxxx Xxxxxxxx & 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 of Xxxxx Xxxx & Xxxxxxxx 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 registered 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
(i) 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 (Portola Pharmaceuticals 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 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 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 reasonable judgment of the Manager, is material and adverse and that makes it, in your judgmentthe reasonable judgment of the Manager, 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)(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 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 from Xxxxxx X. Xxxxx, Xx., Senior Vice President and statement General Counsel of Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP, outside counsel for the Company, dated the Closing Date, to the effect set forth that:
(i) the Company is duly qualified to transact business and is in Exhibit A hereto.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;
(ii) each Significant Subsidiary of 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 as described in the Prospectus and, to the best of such counsel's knowledge, 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) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Indenture, the Offered Securities, the Debt Warrant Securities, the Delayed Delivery Contracts and the Debt Warrant Agreement will not contravene any provision of applicable law or the certificate of incorporation or by-laws of the Company or any of its subsidiaries, or, to the 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, any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Company or any subsidiary;
(iv) the statements (A) in "Item 3 - Legal Proceedings" of the Company's most recent annual report on Form 10-K incorporated by reference in the Prospectus and (B) in "Item 1 - Legal Proceedings" of Part II of the Company's quarterly reports on Form 10-Q, if any, filed since such annual report, in each case insofar as such statements constitute summaries of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings and accurately summarize the matters referred to therein in all material respects;
(v) to the best of such counsel's knowledge, there are no 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 or incorporated by reference as exhibits to the Registration Statement that are not described, filed or incorporated as required;
(vi) each document filed pursuant to the Exchange Act and incorporated by reference in the Prospectus (except for financial statements and schedules and other financial data 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 applicable rules and regulations of the Commission thereunder (in passing upon the compliance as to form of each such document filed pursuant to the Exchange Act and incorporated by reference in the Prospectus, such counsel may assume that the statements made and incorporated by reference therein are correct and complete); and
(vii) no consent, approval, authorization or order of, or filing with, any court or governmental agency or body (excluding any New York court or governmental agency or body) is required for the issue and sale of the Offered Securities or for the performance by the Company of its obligations under this Agreement, the Indenture, the Offered Securities, the Debt Warrant Securities, the Delayed Delivery Contracts or the Debt Warrant Agreement, except such as have been obtained under the Securities Act and the Trust Indenture Act and the applicable rules and regulations of the Commission under the Securities Act and the Trust Indenture Act and such as may be required under state securities laws in connection with the purchase and distribution of the Offered Securities by the Underwriters as to which such counsel may express no opinion;
(d) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxxx P.CXxxxxxx, Xxxxxxxx Islands outside counsel for the Company, dated the Closing Date, to the effect that:
(i) the Company has been duly incorporated and is validly existing and in good standing under the laws 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 the Prospectus;
(ii) this Agreement has been duly authorized, executed and delivered by the Company;
(iii) the Indenture has been (a) duly qualified under the Trust Indenture Act, and (b) duly authorized, executed and delivered by the Company and is the legally valid and binding agreement of the Company, enforceable against the Company in accordance with its terms;
(iv) the Debt Warrant Agreement has been duly authorized, executed and delivered by the Company and is the legally valid and binding agreement of the Company, enforceable against the Company in accordance with its terms;
(v) the Delayed Delivery Contracts have been duly authorized, executed and delivered by the Company and are legally valid and binding agreements of the Company, enforceable against the Company in accordance with their respective terms;
(vi) the Offered Securities and the Debt Warrant Securities have been duly authorized and executed by the Company and, when authenticated by the Trustee in accordance with the terms of the Indenture and delivered to and paid for (A) by the Underwriters in accordance with the terms of the Underwriting Agreement, in the case of Underwriters' Securities, or by institutional investors in accordance with the terms of the Delayed Delivery Contracts, in the case of the Contract Securities and (B) upon the exercise of Debt Warrants pursuant to the Debt Warrant Agreement, in the case of the Debt Warrant Securities, will be entitled to the benefits of the Indenture or the Debt Warrant Agreement, as the case may be, and will be legally valid and binding obligations of the Company, in each case enforceable against the Company in accordance with their respective terms;
(vii) no consent, approval, authorization or order of, or filing with, any New York court or governmental agency or body is required for the issue and sale of the Offered Securities or for the performance by the Company of its obligations under this Agreement, the Indenture, the Offered Securities, the Debt Warrant Securities, the Delayed Delivery Contracts or the Debt Warrant Agreement, except such as have been obtained under the Securities Act and the Trust Indenture Act and the applicable rules and regulations of the Commission under the Securities Act and the Trust Indenture Act and such as may be required under state securities laws in connection with the purchase and distribution of the Offered Securities by the Underwriters as to which such counsel may express no opinion;
(viii) the statements set forth in Exhibit B heretothe Prospectus under the captions "Description of the [Notes/Debentures]" (or other similar caption, as the case may be), "Description of Debt Securities" and "Description of Warrants," in each case insofar as such statements constitute summaries of legal matters or documents referred to therein are accurate in all material respects; and the Offered Securities conform in all material respects to the description thereof in the Prospectus;
(ix) the issue and sale of the Offered Securities being delivered on the Closing Date by the Company and the compliance by the Company with the provisions of the Underwriting Agreement will not result in the violation by the Company of its Restated Certificate of Incorporation or By-laws 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, which are specifically addressed in paragraph (vii) above, or state securities laws, as to which such counsel may express no opinion);
(x) the Company is not an "investment company," as such term is defined in the Investment Company Act of 1940, as amended;
(xi) if applicable, such counsel is of the opinion ascribed to it in the Prospectus under the caption "[Taxation]" (or other similar caption, as the case may be);
(xii) the Registration Statement and the Prospectus, in each case excluding the documents referred to in subparagraph (xiii) below, comply as to form in all material respects with the requirements for registration statements on Form S-3 under the Securities Act and the applicable rules and regulations of the Commission thereunder; it being understood however, that such counsel need express no opinion with respect to financial statements, schedules and other financial data included or incorporated in the Registration Statement or Prospectus or with respect to the Form T-1 (in passing upon the compliance as to form of the Registration Statement and the Prospectus, such counsel may assume that the statements made and incorporated by reference therein are correct and complete); and
(xiii) each document incorporated by reference in the Prospectus (other than the financial statements, schedules and other financial data included or incorporated by reference therein, as to which such counsel need express no opinion), when it was filed with the Commission, appeared on its face to comply as to form in all material respects with the requirements of the Exchange Act and the applicable rules and regulations of the Commission thereunder (in passing upon the compliance as to form of each of such documents, such counsel may assume that the statements made and incorporated by reference therein are correct and complete). In addition, such counsel shall state that it has participated in conferences with officers and other representatives of the Company, counsel to 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 and has not made any independent check or verification thereof (except as set forth in paragraph (viii) above), during the course of such participation, no facts came to such counsel's attention that caused such counsel to believe that the Registration Statement, at the time it became effective, contained an untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, not misleading, or that the Prospectus, as of the date of the Prospectus Supplement 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 to make the statements therein, in the 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, schedules or other financial data included or incorporated by reference in the Registration Statement or the Prospectus or with respect to the Form T-1.
(e) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx Xxxxx & Xxxxxx LLPXxxx 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 covering the matters referred to such matters as may in subparagraphs (ii), (iii), (iv), (v), (vi), (viii), (xii) and the final paragraph of Section 5(d) above. The opinions of Xxxxxx X. Xxxxx, Xx., Senior Vice President and General Counsel of the Company, and of Xxxxxx & Xxxxxxx described in paragraphs (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 of any Underwriting Agreement and the Closing Date, a letter letter, dated the date hereof of each such Underwriting Agreement or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Deloitte Ernst & Touche Young 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 SharesUnderwriting Agreement.
Appears in 1 contract
