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 [●] [a.m./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 any of the Company Entities by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) 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 Entities, taken as a whole, from that set forth in the Time of Sale Prospectus that, in the Representatives’ judgment, is material and adverse and that makes it, in the Representatives’ judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus. (b) The Representatives shall have received on the Closing Date a certificate, dated the Closing Date, addressed to the Underwriters and signed by an executive officer of the Company, to the effect set forth in Section 6(a) above and to the effect that the representations and warranties of the Company Parties contained in this Agreement are true and correct as of the Closing Date and that the Company Parties 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 Representatives shall have received on the Closing Date an opinion of Xxxxxxxx & Xxxxx LLP, outside counsel for the Company, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as Exhibit C. (d) The Representatives shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxx L.L.P., counsel for the Underwriters, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives. With respect to Sections 6(c) and 6(d) above, Xxxxxxxx & Xxxxx LLP and Xxxxxx & Xxxxxx L.L.P. 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 Xxxxxxxx & Xxxxx LLP described in Section 6(c) above shall be rendered to the Underwriters at the request of the Company Parties and shall so state therein. (e) The Representatives shall have received from Deloitte a “comfort letter” (the “initial comfort letter”) dated as of the date hereof and addressed to the Underwriters, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the most recent Time of Sale Prospectus, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings. (f) The Representatives shall have received from Deloitte a “bring-down comfort letter” (the “bring-down comfort letter”) dated as of the Closing Date or the Option Closing Date, as the case may be, and addressed to the Underwriters, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the Closing Date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter, and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter. (g) The Representatives shall have received from Von Gonten a letter (the “Initial Expert Letter”), dated as of the date hereof, in form and substance satisfactory to the Representatives, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offerings. (h) The Representatives shall have received from Von Gonten a subsequent letter, dated as of the Closing Date or the Option Closing Date, as the case may be, in form and substance satisfactory to the Representatives, which such letter shall cover the period from the Initial Expert Letter to the Closing Date or the Option Closing Date, as the case may be, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offerings. (i) The “lock-up” agreements, each substantially in the form of Exhibit A hereto, between the Representatives and those certain stockholders, officers and directors of the Company named in Schedule IV hereto relating to sales and certain other dispositions of shares of stock of the Company or certain other securities, delivered to the Representatives on or before the date hereof, shall be in full force and effect on the Closing Date. (j) The Operative Agreements shall have been executed and delivered by the Company Entities party thereto and shall be in full force and effect on such date. (k) The several obligations of the Underwriters to purchase Additional Shares hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate, dated the Option Closing Date and signed by an executive officer of the Company, confirming that the certificate delivered on the Closing Date pursuant to Section 6(b) hereof remains true and correct as of such Option Closing Date; (ii) an opinion of Xxxxxxxx & Xxxxx 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 & Xxxxxx L.L.P., 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(d) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Deloitte, 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 three business days prior to such Option Closing Date; (v) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Von Gonten, independent reserves engineers, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(h) hereof; and (vi) such other documents as the Representatives may reasonably request with respect to the good standing of the Company Entities, 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 Additional Shares.
Appears in 2 contracts
Samples: Underwriting Agreement (Vine Energy Inc.), Underwriting Agreement (Vine Energy Inc.)
Conditions to the Underwriters’ Obligations. The respective obligations of the Company to sell Fund and the Shares to the Underwriters Advisers and the several obligations of the Underwriters to purchase and pay for the Shares on the Closing Date hereunder are subject to the condition that the Registration Statement shall have become effective not later than [●] [a.m./p.m.] 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:
Date or, if earlier, the dates as of which information is given in the Registration Statement (iexclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), (1) in the case of the Fund, there shall not have occurred (A) any downgrading, nor shall any notice have been given of any intended change or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, decrease specified in the rating accorded any of the securities of any of the Company Entities by any “nationally recognized statistical rating organization,” as such term is defined letter or letters referred to in Section 3(a)(62paragraph (g) of the Exchange Act; and
this Section 6, or (iiB) there shall not have occurred any change, or any development involving that could reasonably be expected to result in a prospective material adverse change, in the condition, financial or otherwise, or in the earnings, business business, prospects, properties or operations of the Company EntitiesFund, taken as a wholewhether or not arising from transactions in the ordinary course of business, from that set forth in the Time of Sale Prospectus thatand, (2) in the case of each Adviser, there shall not have occurred any change, or any development that could reasonably be expected to result in a material adverse change, in the condition, financial or otherwise, or in the earnings, business, prospects, properties, operations, management or personnel of the Adviser, whether or not arising from transactions in the ordinary course of business, from that set forth in the Time of Sale Prospectus, the effect of which in any case referred to in clause (1) or (2) above is, in the sole judgment of the Representatives’ judgment, is so material and adverse and that makes it, in the such Representatives’ judgment, impracticable or inadvisable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Representatives Underwriters shall have received on the Closing Date a certificatecertificates, dated the Closing Date, addressed to of the Underwriters principal executive officer and signed by principal financial officer (or officers acting in similar capacities) of the Fund and an executive officer of the Companyeach Adviser, to the effect set forth (i) that no stop order suspending the effectiveness of the Registration Statement is in Section 6(a) above effect, and no proceedings for such purpose are, as of the Closing Date, pending before or, to the effect knowledge of the Fund or such Adviser, threatened by the Commission, (ii) that the representations and warranties of the Company Parties Fund and such Adviser contained in Sections 1 and 2, as applicable, of this Agreement are true and correct as of the Closing Date Date, (iii) that each of the Fund and that the Company Parties have Advisers 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 (iv) during the time periods set forth in Section 6(a) above, there has been no Fund Material Adverse Effect or Adviser Material Adverse Effect, as applicable. The Each officer signing and delivering such a certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) Each of the Advisers and the Fund shall have performed all of their respective obligations to be performed hereunder on or prior to the Closing Date.
(d) The Representatives Underwriters shall have received on the Closing Date an opinion and a negative assurance letter of Xxxxxxxx & Xxxxx LLPK&L Gates LLP (“K&L Gates”), outside special counsel for the CompanyFund, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives, substantially to the effect set forth in the form attached hereto as Exhibit C.A-1 hereto.
(de) The Representatives Underwriters shall have received on the Closing Date (i) an opinion of Xxxxxx & Xxxxxx L.L.P., internal counsel for the UnderwritersInvestment Adviser and (ii) an opinion of internal counsel for the Subadviser, each dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives, to the effect respectively set forth in Exhibit A-2 and Exhibit A-3 hereto.
(f) The Underwriters shall have received on the Closing Date the favorable opinion of Xxxx, Xxxxxxx & Xxxxxx LLP (“Weil”), counsel for the Underwriters, dated the Closing Date, and covering such matters as the Underwriters shall reasonably request. With In rendering the opinions described in Section 6(d) and Section 6(f) above and the opinions rendered in connection with the sale to the Underwriters of Additional Shares, if any, as to matters of Massachusetts law, K&L Gates and Weil may rely on the opinion of Xxxxxx Xxxxx & Xxxxxxx LLP (“Xxxxxx Xxxxx”), so long as a copy of such opinion of Xxxxxx Xxxxx is delivered to you and is in form and substance satisfactory to you and your counsel, and such opinion of Xxxxxx Xxxxx expressly permits reliance thereon by X&X Gates and Weil for purposes of rendering the foregoing opinion.
(g) The Underwriters shall have received, on each of the date hereof and the Closing Date, a signed report from KPMG LLP, dated such date, and in form and substance satisfactory to you and your counsel containing statements and information of the type ordinarily included in accountants’ reports with respect to Sections 6(c) the financial statements and 6(d) above, Xxxxxxxx & Xxxxx LLP and Xxxxxx & Xxxxxx L.L.P. may state that their opinions and beliefs are based upon their participation certain financial information contained 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 Prospectus, provided that the contents thereof, but are without independent check or verification, except as specified. The opinion of Xxxxxxxx & Xxxxx LLP described in Section 6(c) above letter delivered on the Closing Date shall be rendered to the Underwriters at the request of the Company Parties and shall so state therein.
(e) The Representatives shall have received from Deloitte use a “comfort lettercut-off date” (the “initial comfort letter”) dated as of the date hereof and addressed to the Underwriters, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the most recent Time of Sale Prospectus, as of a date not more earlier than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(f) The Representatives shall have received from Deloitte a “bring-down comfort letter” (the “bring-down comfort letter”) dated as of the Closing Date or the Option Closing Date, as the case may be, and addressed to the Underwriters, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the Closing Date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter, and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(g) The Representatives shall have received from Von Gonten a letter (the “Initial Expert Letter”), dated as of the date hereof, in form and substance satisfactory to the Representatives, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offerings.
(h) The Representatives shall have received from Von Gonten a subsequent letterAll filings, dated as applications and proceedings taken by the Fund and the Advisers in connection with the organization and registration of the Closing Date or Fund and the Option Closing Date, as Shares under the case may be, Acts and the applicable Rules and Regulations shall be satisfactory in form and substance satisfactory to you and counsel for the Representatives, which such letter shall cover the period from the Initial Expert Letter to the Closing Date or the Option Closing Date, as the case may be, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offeringsUnderwriters.
(i) No action, suit, proceeding, inquiry or investigation shall have been instituted or, to the knowledge of the Fund or the Advisers, threatened by the Commission which would adversely affect the Fund’s standing as a registered investment company under the Investment Company Act or the standing of the Investment Adviser or Subadviser as a registered investment adviser under the Advisers Act.
(j) The Shares shall have been duly authorized for listing on the New York Stock Exchange, subject only to official notice of issuance thereof.
(k) On the date hereof, the Investment Adviser shall deliver to each of the other parties to the Fee Agreements copies of the Fee Agreements, executed by such Investment Adviser, together with reproduced copies of such agreements executed by the Investment Adviser for each of the other parties thereto.
(l) The “lock-lock up” agreements, each substantially in the form of Exhibit A hereto, agreements between the Representatives you and those certain stockholdersemployees, officers and directors trustees of the Company named Fund or the Advisers purchasing Shares in Schedule IV hereto the offering, relating to sales and certain other dispositions of shares of stock of the Company Common Shares or certain other securities, delivered to the Representatives you on or before the date hereof, shall be in full force and effect on the Closing Date.
(jm) The Operative Agreements Underwriters shall have been executed and delivered by received on the Company Entities party thereto and shall be Closing Date a certificate from a duly authorized officer of the Transfer Agent certifying that the Transfer Agency Agreement is in full force and effect on such date.
(k) and is a valid and binding agreement of the Transfer Agent. The several obligations of the Underwriters to purchase Additional Shares hereunder are subject to the delivery to the Representatives 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 Xxxxxxxx & Xxxxx 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 & Xxxxxx L.L.P., 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(d) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Deloitte, 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 three business days prior to such Option Closing Date;
(v) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Von Gonten, independent reserves engineers, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(h) hereof; and
(vi) such other documents as the Representatives you may reasonably request with respect to the good standing of the Company EntitiesFund and the Advisers, 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 Additional Shares, and officers’ certificates, a report of KPMG LLP and opinions of K&L Xxxxx, internal counsel for the Investment Adviser, internal counsel for the Subadviser and Weil to the effect set forth above, except that such certificates, report and opinions shall be dated as of the applicable Option Closing Date and statements and opinions above contemplated to be given as of the Closing Date shall instead be made and given as of such Option Closing Date.
Appears in 2 contracts
Samples: Underwriting Agreement (Nuveen High Income December 2018 Target Term Fund), Underwriting Agreement (Nuveen High Income 2020 Target Term Fund)
Conditions to the Underwriters’ Obligations. The respective obligations of the Company to sell Fund and the Shares to the Underwriters Advisers and the several obligations of the Underwriters to purchase and pay for the Shares on the Closing Date hereunder are subject to the condition that the Registration Statement shall have become effective not later than [●] [a.m./p.m.] 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:
Date or, if earlier, the dates as of which information is given in the Registration Statement (iexclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), (1) in the case of the Fund, there shall not have occurred (A) any downgrading, nor shall any notice have been given of any intended change or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, decrease specified in the rating accorded any of the securities of any of the Company Entities by any “nationally recognized statistical rating organization,” as such term is defined letter or letters referred to in Section 3(a)(62paragraph (g) of the Exchange Act; and
this Section 6, or (iiB) there shall not have occurred any change, or any development involving that could reasonably be expected to result in a prospective material adverse change, in the condition, financial or otherwise, or in the earnings, business business, prospects, properties or operations of the Company EntitiesFund, taken as a wholewhether or not arising from transactions in the ordinary course of business, from that set forth in the Time of Sale Prospectus thatand, (2) in the case of each Adviser, there shall not have occurred any change, or any development that could reasonably be expected to result in a material adverse change, in the Representatives’ judgmentcondition, is financial or otherwise, or in the earnings, business, prospects, properties, operations, management or personnel of the Adviser, whether or not arising from transactions in the ordinary course of business, from that set forth in the Time of Sale Prospectus, the effect of which in any case referred to in clause (1) or (2) above is, in the sole judgment of the representatives of the Underwriters, so material and adverse and that makes it, in the Representativessuch representatives’ judgment, impracticable or inadvisable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Representatives Underwriters shall have received on the Closing Date a certificatecertificates, dated the Closing Date, addressed to of the Underwriters chief executive officer and signed by chief financial officer (or officers acting in similar capacities) of the Fund and an executive officer of the Companyeach Adviser, to the effect set forth (i) that no stop order suspending the effectiveness of the Registration Statement is in Section 6(a) above effect, and no proceedings for such purpose are, as of the Closing Date, pending before or, to the effect knowledge of the Fund or such Adviser, threatened by the Commission, (ii) that the representations and warranties of the Company Parties Fund and such Adviser contained in this Agreement are true and correct as of the Closing Date Date, (iii) that each of the Fund and that the Company Parties have Advisers 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 (iv) during the time periods set forth in Section 6(a) above, there has been no Fund Material Adverse Effect or Adviser Material Adverse Effect, as applicable. The Each officer signing and delivering such a certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) Each of the Advisers and the Fund shall have performed all of their respective obligations to be performed hereunder on or prior to the Closing Date.
(d) The Representatives Underwriters shall have received on the Closing Date an opinion of Xxxxxxxx & Xxxxx LLPK&L Gates LLP (“K&L Gates”), outside special counsel for the CompanyFund, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representativesrepresentatives of the Underwriters, substantially to the effect set forth in the form attached hereto as Exhibit C.A-1 hereto.
(de) The Representatives Underwriters shall have received on the Closing Date (i) an opinion of Xxxxxx & Xxxxxx L.L.P., internal counsel for the UnderwritersInvestment Adviser and (ii) an opinion of internal counsel for the Subadviser, each dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representativesrepresentatives of the Underwriters, to the effect respectively set forth in Exhibit A-2 and Exhibit A-3 hereto.
(f) The Underwriters shall have received on the Closing Date the favorable opinion of Xxxx, Xxxxxxx & Xxxxxx LLP (“Weil”), counsel for the Underwriters, dated the Closing Date, and covering such matters as the Underwriters shall reasonably request. With respect to Sections 6(cIn rendering the opinions described in Section 6(d) and 6(dSection 6(f) above, Xxxxxxxx as to matters of Massachusetts law, K&L Gates and Weil may rely on the opinion of Xxxxxxx XxXxxxxxx LLP (“Xxxxxxx XxXxxxxxx”), so long as a copy of such opinion of Xxxxxxx XxXxxxxxx is delivered to you and is in form and substance satisfactory to you and your counsel, and such opinion of Xxxxxxx XxXxxxxxx expressly permits reliance thereon by K&L Gates and Weil for purposes of rendering the foregoing opinion.
(g) The Underwriters shall have received, on each of the date hereof and the Closing Date, a signed report from Ernst & Xxxxx LLP Young, LLP, dated such date, and Xxxxxx & Xxxxxx L.L.P. may state that their opinions in form and beliefs are based upon their participation substance satisfactory to you and your counsel containing statements and information of the type ordinarily included in accountants’ reports with respect to the preparation of financial statements and certain financial information contained in the Registration Statement, the Time of Sale Prospectus and the Prospectus and any amendments or supplements thereto and review and discussion of Prospectus, provided that the contents thereof, but are without independent check or verification, except as specified. The opinion of Xxxxxxxx & Xxxxx LLP described in Section 6(c) above letter delivered on the Closing Date shall be rendered to the Underwriters at the request of the Company Parties and shall so state therein.
(e) The Representatives shall have received from Deloitte use a “comfort lettercut-off date” (the “initial comfort letter”) dated as of the date hereof and addressed to the Underwriters, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the most recent Time of Sale Prospectus, as of a date not more earlier than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(f) The Representatives shall have received from Deloitte a “bring-down comfort letter” (the “bring-down comfort letter”) dated as of the Closing Date or the Option Closing Date, as the case may be, and addressed to the Underwriters, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the Closing Date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter, and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(g) The Representatives shall have received from Von Gonten a letter (the “Initial Expert Letter”), dated as of the date hereof, in form and substance satisfactory to the Representatives, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offerings.
(h) The Representatives shall have received from Von Gonten a subsequent letterAll filings, dated as applications and proceedings taken by the Fund and the Advisers in connection with the organization and registration of the Closing Date or Fund and the Option Closing Date, as Shares under the case may be, Acts and the applicable Rules and Regulations shall be satisfactory in form and substance satisfactory to you and counsel for the Representatives, which such letter shall cover the period from the Initial Expert Letter to the Closing Date or the Option Closing Date, as the case may be, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offeringsUnderwriters.
(i) The “lock-up” agreementsNo action, each substantially in suit, proceeding, inquiry or investigation shall have been instituted or, to the form of Exhibit A hereto, between the Representatives and those certain stockholders, officers and directors knowledge of the Fund or the Advisers, threatened by the Commission which would adversely affect the Fund’s standing as a registered investment company under the Investment Company named in Schedule IV hereto relating to sales and certain other dispositions of shares of stock Act or the standing of the Company Investment Adviser or certain other securities, delivered to Subadviser as a registered investment adviser under the Representatives on or before the date hereof, shall be in full force and effect on the Closing DateAdvisers Act.
(j) The Operative Agreements Shares shall have been executed and delivered by duly authorized for listing on the Company Entities party thereto and shall be in full force and effect on such dateNew York Stock Exchange, subject only to official notice of issuance thereof.
(km) On the date hereof, the Investment Adviser shall deliver to each of the other parties to the Fee Agreements copies of the Fee Agreements, executed by such Investment Adviser, together with reproduced copies of such agreements executed by the Investment Adviser for each of the other parties thereto. The several obligations of the Underwriters to purchase Additional Shares hereunder are subject to the delivery to the Representatives 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 Xxxxxxxx & Xxxxx 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 & Xxxxxx L.L.P., 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(d) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Deloitte, 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 three business days prior to such Option Closing Date;
(v) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Von Gonten, independent reserves engineers, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(h) hereof; and
(vi) such other documents as the Representatives you may reasonably request with respect to the good standing of the Company EntitiesFund and the Advisers, 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 Additional Shares, and officers’ certificates and opinions of K&L Gates, internal counsel for the Investment Adviser, internal counsel for the Subadviser and Weil to the effect set forth above, except that such certificates and opinions shall be dated as of the applicable Option Closing Date and statements and opinions above contemplated to be given as of the Closing Date shall instead be made and given as of such Option Closing Date.
Appears in 2 contracts
Samples: Underwriting Agreement (Nuveen Flexible Investment Income Fund), Underwriting Agreement (Nuveen Flexible Investment Income Fund)
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 [●] [a.m./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) 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 any of the Company Entities or its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of 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 Entities, taken as a whole, or its subsidiaries from that set forth in the Time of Sale Prospectus that, in the Representatives’ your judgment, is material and adverse and that makes it, in the Representatives’ your judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Representatives Underwriters shall have received on the Closing Date a certificate, dated the Closing Date, addressed to the Underwriters Date and signed by an executive officer of the Company on behalf of the Company, to the effect set forth in Section 6(a5(a)(i) and 5(a)(ii) above and to the effect that the representations and warranties of the Company Parties contained in this Agreement are true and correct as of the Closing Date and that the Company Parties have 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 Representatives Underwriters shall have received on the Closing Date an opinion and negative assurance letter of Xxxxxxxx & Xxxxx Wxxxxx Xxxxxx Pxxxxxxxx Xxxx and Dxxx LLP, outside counsel for the Company, dated the Closing Date and addressed to the UnderwritersDate, in form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as Exhibit C..
(d) The Representatives Underwriters shall have received on the Closing Date an opinion and negative assurance letter of Dxxxx Xxxx & Wxxxxxxx LLP, counsel for the Underwriters, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives.
(e) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxx L.L.P.Hxxx Partners, primary intellectual property counsel for the UnderwritersCompany, dated the Closing Date Date, in form and addressed substance reasonably satisfactory to the UnderwritersRepresentatives.
(f) The Underwriters shall have received on the Closing Date an opinion of Cxxxxx LLP, intellectual property counsel for the Company, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives. With respect to Sections 6(c) and 6(d) above, Xxxxxxxx & Xxxxx LLP and Xxxxxx & Xxxxxx L.L.P. 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 Xxxxxxxx & Xxxxx Wxxxxx Xxxxxx Pxxxxxxxx Xxxx and Dxxx LLP described in Section 6(c5(c) above, the opinion of Hxxx Partners described in Section 5(e) above and the opinion of Cxxxxx LLP described in Section 5(f) above shall be rendered to the Underwriters at the request of the Company Parties and shall so state therein.
(eg) The Representatives Underwriters shall have received from Deloitte a “comfort letter” (the “initial comfort letter”) dated as received, on each of the date hereof and addressed to the UnderwritersClosing Date, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of a letter dated the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the most recent Time of Sale Prospectus, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(f) The Representatives shall have received from Deloitte a “bring-down comfort letter” (the “bring-down comfort letter”) dated as of the Closing Date or the Option Closing Date, as the case may be, and addressed to the Underwriters, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the Closing Date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter, and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(g) The Representatives shall have received from Von Gonten a letter (the “Initial Expert Letter”), dated as of the date hereof, in form and substance satisfactory to the Representatives, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offerings.
(h) The Representatives shall have received from Von Gonten a subsequent letter, dated as of the Closing Date or the Option Closing Date, as the case may be, in form and substance satisfactory to the RepresentativesUnderwriters, which such 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 contained in the Registration Statement, the Time of Sale Prospectus and the Prospectus; provided that the letter shall cover the period from the Initial Expert Letter to delivered on the Closing Date or shall use a “cut-off date” not earlier than the Option Closing Date, as the case may be, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offeringsdate hereof.
(ih) The “lock-up” agreements, each substantially in the form of Exhibit A hereto, between the Representatives you and those certain stockholders, officers and directors of the Company named in Schedule IV hereto relating to sales and certain other dispositions of shares of stock of the Company Common Stock or certain other securities, delivered to the Representatives you on or before the date hereof, shall be in full force and effect on the Closing Date.
(ji) The Operative Agreements Underwriters shall have been executed and delivered by received on the Closing Date a certificate of the chief financial officer of the Company Entities party thereto on behalf of the Company with respect to certain financial information contained in the Registration Statement, the Time of Sale Prospectus and shall be the Prospectus, in full force form and effect on such date.
(k) substance reasonably satisfactory to the Representatives. The several obligations of the Underwriters to purchase Additional Shares hereunder are subject to the delivery to the Representatives you on the applicable Option Closing Date of the following:
(i) a certificate, dated the Option Closing Date and signed on behalf of the Company by an executive officer of the Company, confirming that the certificate delivered on the Closing Date pursuant to Section 6(b5(b) hereof remains true and correct as of such Option Closing Date;
(ii) an opinion and negative assurance letter of Xxxxxxxx & Xxxxx Wxxxxx Xxxxxx Pxxxxxxxx Xxxx and Dxxx 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 substantially 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) an opinion of Hxxx Partners, primary 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 6(c5(e) hereof;
(iiiv) an opinion of Xxxxxx & Xxxxxx L.L.P.Cxxxxx LLP, intellectual property counsel for the UnderwritersCompany, 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(d5(f) hereof;
(ivvi) a letter dated the Option Closing Date, in form and substance satisfactory to the RepresentativesUnderwriters, from DeloitteErnst & Young LLP, independent public accountants, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(f5(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
(vvii) a letter certificate, dated the Option Closing DateDate and signed by the chief financial officer of the Company on behalf of the Company, in form and substance satisfactory to confirming that the Representatives, from Von Gonten, independent reserves engineers, substantially in certificate delivered on the same form and substance as the letter furnished to the Underwriters Closing Date pursuant to Section 6(h5(i) hereofhereof remains true and correct as of such Option Closing Date; and
(viviii) such other documents as the Representatives you may reasonably request with respect to the good standing of the Company EntitiesCompany, the due authorization and issuance of the Additional Shares to be sold on such Option Closing Date and other matters related to the issuance or sale of such Additional Shares.
Appears in 2 contracts
Samples: Underwriting Agreement (IVERIC Bio, Inc.), Underwriting Agreement (IVERIC Bio, 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 [●•:•] [a.m./p.m.] A./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 any of the Company Entities by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Securities Exchange Act of 1934, as amended (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 Entitiesand its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus that, in the Representatives’ your judgment, is material and adverse and that makes it, in the Representatives’ your judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Representatives Underwriters shall have received on the Closing Date a certificate, dated the Closing Date, addressed to the Underwriters Date and signed on behalf of the Company by an executive officer of the Company, to the effect set forth in Section 6(a5(a)(i) above and to the effect that the representations and warranties of the Company Parties contained in this Agreement are true and correct as of the Closing Date and that the Company Parties have 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 Representatives Underwriters shall have received on the Closing Date an opinion and negative assurance letter of Xxxxxxxx & Xxxxx LLPXxxxxx LLP (“Cooley”), outside counsel for the Company, dated the Closing Date and addressed to the UnderwritersDate, in form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as Exhibit C..
(d) The Representatives Underwriters shall have received on the Closing Date an opinion of Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx L.L.P.Xxxxxx, Professional Corporation (“WSGR”), counsel for the Underwriters, dated the Closing Date and addressed to the UnderwritersDate, in form and substance reasonably satisfactory to the Representatives. With respect to Sections 6(cSection 5(c) and 6(d) above5(d), Xxxxxxxx & Xxxxx LLP Cooley and Xxxxxx & Xxxxxx L.L.P. WSGR, 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 Xxxxxxxx & Xxxxx LLP Cooley described in Section 6(c5(c) above shall be rendered to the Underwriters at the request of the Company Parties and shall so state therein.
(e) The Representatives Underwriters shall have received from Deloitte a “comfort letter” (the “initial comfort letter”) dated as received, on each of the date hereof and addressed to the UnderwritersClosing Date, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of a letter dated the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the most recent Time of Sale Prospectus, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(f) The Representatives shall have received from Deloitte a “bring-down comfort letter” (the “bring-down comfort letter”) dated as of the Closing Date or the Option Closing Date, as the case may be, and addressed to the Underwriters, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the Closing Date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter, and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(g) The Representatives shall have received from Von Gonten a letter (the “Initial Expert Letter”), dated as of the date hereof, in form and substance satisfactory to the Representatives, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offerings.
(h) The Representatives shall have received from Von Gonten a subsequent letter, dated as of the Closing Date or the Option Closing Date, as the case may be, in form and substance satisfactory to the RepresentativesUnderwriters, which such from BDO 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 shall cover the period from the Initial Expert Letter to delivered on the Closing Date or shall use a “cut-off date” not earlier than the Option Closing Date, as the case may be, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offeringsdate hereof.
(if) The “lock-up” agreements, each substantially in the form of Exhibit A hereto, between the Representatives you and those certain stockholdersshareholders, officers and directors of the Company named in Schedule IV hereto relating to sales and certain other dispositions of shares of stock of the Company Common Stock or certain other securities, delivered to the Representatives you on or before the date hereof, shall be in full force and effect on the Closing Date.
(jg) The Operative Agreements Underwriters shall have been executed received on the Closing Date an opinion of Squire Xxxxxx Xxxxx (UK) LLP, United Kingdom outside counsel for the Company, dated the Closing Date, in form and delivered by substance reasonably satisfactory to the Company Entities party thereto Representatives and shall be in full force and effect on such datecounsel for the Underwriters.
(kh) The Underwriters shall have received on the Closing Date an opinion of Xxxxxxx Xxxxxxx, Switzerland outside counsel for the Company, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and counsel for the Underwriters.
(i) The several obligations of the Underwriters to purchase Additional Shares hereunder are subject to the delivery to the Representatives 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(b5(b) hereof remains true and correct as of such Option Closing Date;
(ii) an opinion and negative assurance letter of Xxxxxxxx & Xxxxx LLPCooley, 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 substantially the same effect as the opinion required by Section 6(c5(c) hereof;
(iii) an opinion of Xxxxxx & Xxxxxx L.L.P.WSGR, 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 substantially the same effect as the opinion required by Section 6(d5(d) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the RepresentativesUnderwriters, from DeloitteBDO, independent public accountants, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(f5(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;
(v) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Von Gonten, independent reserves engineers, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(h) hereof; and
(viv) such other documents as the Representatives you may reasonably request with respect to the good standing of the Company EntitiesCompany, 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 Additional Shares.
Appears in 1 contract
Samples: Underwriting Agreement (Appian 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 the Registration Statement shall have become effective not later than [●] [a.m./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 the Company Entities its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Securities Exchange Act of 1934, as amended (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 Entitiesand its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus that, in the Representatives’ your judgment, is material and adverse and that makes it, in the Representatives’ your judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Representatives Underwriters shall have received on the Closing Date a certificate, dated the Closing Date, addressed to the Underwriters Date and signed on behalf of the Company by an executive officer of the Company, to the effect set forth in Section 6(a5(a)(i) above and to the effect that the representations and warranties of the Company Parties contained in this Agreement are true and correct as of the Closing Date and that the Company Parties have 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 Representatives shall have received on the Closing Date an opinion of Xxxxxxxx & Xxxxx LLP, outside counsel for the Company, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as Exhibit C.
(d) The Representatives Underwriters shall have received on the Closing Date an opinion of Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx L.L.P.Xxxxxx, Professional Corporation, outside counsel for the Company, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives.
(d) The Underwriters shall have received on the Closing Date an opinion of Xxxxxxx Procter LLP, counsel for the Underwriters, dated the Closing Date and addressed to the UnderwritersDate, in form and substance reasonably satisfactory to the Representatives. With respect to Sections 6(c5(c) and 6(d(d) above, each of Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxx Xxxxxx, Professional Corporation, and Xxxxxxx Procter LLP and Xxxxxx & Xxxxxx L.L.P. may state that their its opinions and beliefs are based upon their its 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 Xxxxxxx Xxxxxxxx & Xxxxx LLP Xxxxxx, Professional Corporation, described in Section 6(c5(c) above shall be rendered to the Underwriters at the request of the Company Parties Company, and shall so state therein.
(e) The Representatives Underwriters shall have received from Deloitte a “comfort letter” (the “initial comfort letter”) dated as received, on each of the date hereof and addressed to the UnderwritersClosing Date, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of a letter dated the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the most recent Time of Sale Prospectus, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(f) The Representatives shall have received from Deloitte a “bring-down comfort letter” (the “bring-down comfort letter”) dated as of the Closing Date or the Option Closing Date, as the case may be, and addressed to the Underwriters, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the Closing Date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter, and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(g) The Representatives shall have received from Von Gonten a letter (the “Initial Expert Letter”), dated as of the date hereof, in form and substance satisfactory to the Representatives, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offerings.
(h) The Representatives shall have received from Von Gonten a subsequent letter, dated as of the Closing Date or the Option Closing Date, as the case may be, in form and substance satisfactory to the RepresentativesUnderwriters, which such from 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 shall cover the period from the Initial Expert Letter to delivered on the Closing Date or shall use a “cut-off date” not earlier than the Option Closing Date, as the case may be, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offeringsdate hereof.
(if) The “lock-up” agreements, each substantially in the form of Exhibit A hereto, between the Representatives you and those certain stockholders, officers and directors of the Company named in Schedule IV hereto relating to sales and certain other dispositions of shares of stock of the Company Common Stock or certain other securities, delivered to the Representatives you on or before the date hereof, shall be in full force and effect on the Closing Date.
(jg) The Operative Agreements Underwriters shall have been executed received, on the date hereof and delivered by the Company Entities party thereto Closing Date, a certificate of the principal financial officer dated the date hereof, in form and shall be substance satisfactory to the Underwriters, containing statements and information with respect to certain information contained in full force the Time of Sale Prospectus and effect on such datethe Prospectus.
(kh) The several obligations of the Underwriters to purchase Additional Shares hereunder are subject to the delivery to the Representatives 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(b5(b) hereof remains true and correct as of such Option Closing Date;
(ii) an opinion of Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxx LLPXxxxxx, Professional Corporation, 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(c5(c) hereof;
(iii) an opinion of Xxxxxx & Xxxxxx L.L.P.Xxxxxxx Procter 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(d5(d) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the RepresentativesUnderwriters, from DeloitteKPMG LLP, independent public accountants, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(f5(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;
(v) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Von Gonten, independent reserves engineers, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(h) hereof; and
(viv) such other documents as the Representatives you may reasonably request with respect to the good standing of the Company EntitiesCompany, 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 Additional Shares.
Appears in 1 contract
Conditions to the Underwriters’ Obligations. The obligations of the Company to sell the Shares to the Underwriters and the several obligations of the Underwriters to purchase and pay for the Shares on the Closing Date are subject to the condition that no stop order suspending the effectiveness of the Registration Statement shall have become effective not later than [●] [a.m./p.m.] (New York City time) on been issued under the date hereofSecurities 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 securities of the Company or any of the Company Entities its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) 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 Entitiesand its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus that, in the Representatives’ your judgment, is material and adverse and that makes it, in the Representatives’ your judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Representatives Underwriters shall have received on the Closing Date a certificate, dated the Closing Date, addressed to the Underwriters Date and signed by an executive officer of the Company, to the effect set forth in Section 6(a5(a)(i) above and to the effect that the representations and warranties of the Company Parties contained in this Agreement are true and correct as of the Closing Date and that the Company Parties have 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 Representatives Underwriters shall have received on the Closing Date an opinion of Xxxxxxxx & Xxxxx Xxxxxxx Procter LLP, outside counsel for the Company, dated the Closing Date and addressed to the UnderwritersDate, in form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as of Exhibit C.B hereto.
(d) The Representatives Underwriters shall have received on the Closing Date an opinion of from Milbank, Tweed, Xxxxxx & Xxxxxx L.L.P.XxXxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the UnderwritersDate, in form and substance reasonably satisfactory to the Representatives. With with respect to Sections 6(c) and 6(d) abovesuch matters as the Underwriters may reasonably require, Xxxxxxxx & Xxxxx LLP and Xxxxxx & Xxxxxx L.L.P. 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 Company shall have furnished to such counsel such documents as specified. The opinion of Xxxxxxxx & Xxxxx LLP described in Section 6(c) above shall be rendered they request for enabling them to the Underwriters at the request of the Company Parties and shall so state thereinpass upon such matters.
(e) The Representatives Underwriters shall have received from Deloitte a “comfort letter” (the “initial comfort letter”) dated as received, on each of the date hereof and addressed to the UnderwritersClosing Date, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of a letter dated the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the most recent Time of Sale Prospectus, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(f) The Representatives shall have received from Deloitte a “bring-down comfort letter” (the “bring-down comfort letter”) dated as of the Closing Date or the Option Closing Date, as the case may be, and addressed to the Underwriters, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the Closing Date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter, and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(g) The Representatives shall have received from Von Gonten a letter (the “Initial Expert Letter”), dated as of the date hereof, in form and substance satisfactory to the Representatives, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offerings.
(h) The Representatives shall have received from Von Gonten a subsequent letter, dated as of the Closing Date or the Option Closing Date, as the case may be, in form and substance satisfactory to the Representatives, which such from 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 shall cover the period from the Initial Expert Letter to delivered on the Closing Date or shall use a “cut-off date” not earlier than the Option Closing Date, as the case may be, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offeringsdate hereof.
(if) The “lock-up” agreements, each substantially in the form of Exhibit A hereto, between you and the Representatives and those certain stockholdersshareholders, officers and directors of the Company named listed in Schedule IV hereto III hereto, relating to sales and certain other dispositions of shares of stock of the Company Common Stock or certain other securities, delivered to the Representatives you on or before the date hereof, shall be in full force and effect on the Closing Date.
(jg) The Operative Agreements Underwriters shall have been executed received, on each of the date hereof and delivered the Closing Date, a certificate, dated the date hereof or the Closing Date, as the case may be, signed by the Company Entities party thereto Chief Financial Officer of the Company, in form and shall be in full force and effect on such datesubstance satisfactory to the Representatives.
(kh) The several obligations of the Underwriters to purchase Additional Shares hereunder are subject to the delivery to the Representatives 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(b5(b) hereof remains true and correct as of such Option Closing Date;
(ii) an opinion of Xxxxxxxx & Xxxxx Xxxxxxx 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 required by Section 6(c5(c) hereof;
(iii) an opinion of Milbank, Tweed, Xxxxxx & Xxxxxx L.L.P.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 6(d5(d) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from DeloitteKPMG LLP, independent public accountants, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(f5(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;
(v) a letter certificate, dated the Option Closing Date, signed by the Chief Financial Officer of the Company, in form and substance satisfactory to the Representatives, from Von Gonten, independent reserves engineers, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(h) hereof; and
(vi) such other documents as the Representatives you may reasonably request with respect to the good standing of the Company EntitiesCompany, 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 Additional Shares.
Appears in 1 contract
Conditions to the Underwriters’ Obligations. The obligations of the Company to sell the Shares to the Underwriters and the several obligations of the Underwriters to purchase and pay for the Shares on the Closing Date are subject to the condition that the Registration Statement shall have become effective not later than [●] [a.m./p.m.8:30 a.m.] (New York City time) on the date hereofhereof and that no order suspending the effectiveness of the Registration Statement shall be in effect, and no proceeding for such purpose pursuant to Section 8A under the Securities Act shall be pending before or 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 securities of the Company or any of the Company Entities its Subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”); and
(ii) there shall not have occurred any change, or any development or event involving a prospective change, in the condition, condition (financial or otherwise), or in the earningsresults of operations, business or operations properties of the Company Entities, and its Subsidiaries taken as a whole, from that set forth in the Time of Sale Prospectus thatwhole which, in the judgment of the Representatives’ judgment, is so material and adverse and that makes it, in the Representatives’ judgment, impracticable to make it impractical or inadvisable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Representatives Underwriters shall have received on the Closing Date a certificate, dated the Closing Date, addressed to the Underwriters Date and signed by an executive officer of the Company, to the effect set forth in Section 6(a5(a)(i) above and to the effect that the representations and warranties of the Company Parties contained in this Agreement are true and correct as of the Closing Date and that the Company Parties have 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 Representatives Underwriters shall have received on the Closing Date an opinion and negative assurance letter of Xxxxxxxx Weil, Gotshal & Xxxxx Xxxxxx LLP, outside counsel for the Company, dated the Closing Date and addressed to the UnderwritersDate, in form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as Exhibit C.Underwriters.
(d) The Representatives Underwriters shall have received on the Closing Date an opinion and negative assurance letter of Xxxxxx Xxxxxx & Xxxxxx L.L.P.Xxxxxxx LLP, counsel for the Underwriters, dated the Closing Date and addressed to the UnderwritersDate, in form and substance reasonably satisfactory to the Representatives. With with respect to Sections 6(c) and 6(d) above, Xxxxxxxx & Xxxxx LLP and Xxxxxx & Xxxxxx L.L.P. 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 such matters as specified. The opinion of Xxxxxxxx & Xxxxx LLP described in Section 6(c) above shall be rendered to the Underwriters at the request of the Company Parties and shall so state thereinmay require.
(e) The Representatives Underwriters shall have received from Deloitte a “comfort letter” (the “initial comfort letter”) dated as received, on each of the date hereof and addressed to the UnderwritersClosing Date, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of a letter dated the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the most recent Time of Sale Prospectus, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(f) The Representatives shall have received from Deloitte a “bring-down comfort letter” (the “bring-down comfort letter”) dated as of the Closing Date or the Option Closing Date, as the case may be, and addressed to the Underwriters, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the Closing Date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter, and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(g) The Representatives shall have received from Von Gonten a letter (the “Initial Expert Letter”), dated as of the date hereof, in form and substance satisfactory to the Representatives, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offerings.
(h) The Representatives shall have received from Von Gonten a subsequent letter, dated as of the Closing Date or the Option Closing Date, as the case may be, in form and substance satisfactory to the RepresentativesUnderwriters, which such 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 contained in the Registration Statement, the Time of Sale Prospectus and the Prospectus; provided that the letter shall cover the period from the Initial Expert Letter to delivered on the Closing Date or shall use a “cut-off date” not earlier than the Option Closing Date, as the case may be, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offeringsdate hereof.
(if) The “lock-up” agreements, each substantially in the form of Exhibit A hereto, between the Representatives you and those certain stockholdersshareholders, officers and directors of the Company named in Schedule IV hereto relating to sales and certain other dispositions of shares of stock of the Company Class A Common Stock or certain other securities, delivered to the Representatives you on or before the date hereof, shall be in full force and effect on the Closing Date.
(jg) The Operative Agreements shall Shares to be delivered on such Closing Date will have been executed and delivered by approved for listing on the Company Entities party thereto and shall be in full force and effect on such dateNYSE, subject to official notice of issuance.
(kh) The several obligations of the Underwriters to purchase Additional Shares hereunder are subject to the delivery to the Representatives 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(b5(b) hereof remains true and correct as of such Option Closing Date;
(ii) an opinion of Xxxxxxxx Weil, Gotshal & Xxxxx 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(c5(c) hereof;
(iii) an opinion of Xxxxxx Xxxxxx & Xxxxxx L.L.P.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(d5(d) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the RepresentativesUnderwriters, from DeloitteErnst & Young LLP, independent public accountants, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(f5(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;
(v) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Von Gonten, independent reserves engineers, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(h) hereof; and
(viv) such other documents as the Representatives you may reasonably request with respect to the good standing of the Company EntitiesCompany, 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 Additional Shares.
Appears in 1 contract
Conditions to the Underwriters’ Obligations. The obligations of the Company to sell the Shares to the Underwriters and the several obligations of the Underwriters to purchase and pay for the Shares on the Closing Date are subject to the condition that the Registration Statement shall have become effective not later than [●] [a.m./p.m.] (4:30 p.m.], New York City time) , on the date hereof. 2 To be 5 business days after expected closing date. 3 To be 10 business days after the expiration of the green shoe option. The several obligations of the Underwriters are subject to the following further conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate no order suspending the direction effectiveness of the possible changeRegistration Statement shall be in effect, in and no proceeding for such purpose or pursuant to Section 8A under the rating accorded any of Securities Act shall be pending before or threatened by the securities of any of the Company Entities by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of 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 Entitiesand its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus that, in the Representatives’ judgment, is material and adverse and that makes it, in the Representatives’ judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Representatives Underwriters shall have received on the Closing Date a certificate, dated as of the Closing Date, addressed to the Underwriters Date and signed by an executive officer of the Company, to the effect set forth in Section 6(a5(a)(i) and Section 5(a)(ii) above and to the effect that the representations and warranties of the Company Parties contained in this Agreement are true and correct as of the Closing Date and that the Company Parties have 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 Representatives Underwriters shall have received on the Closing Date an opinion and negative assurance letter of Xxxxxx & Xxxxxx L.L.P., U.S. counsel for the Company, dated the Closing Date, in form and substance satisfactory to the Underwriters.
(d) The Underwriters shall have received on the Closing Date an opinion of Xxxxxxxx & Xxxxx LLPMJM Limited, outside special Bermuda counsel for the Company, dated the Closing Date and addressed to the UnderwritersDate, in form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as Exhibit C.Underwriters.
(de) The Representatives Underwriters shall have received on the Closing Date an opinion of Xxxxxxx Xxxxxx Advogados, special Brazilian counsel for the Company, dated the Closing Date, in form and substance satisfactory to the Underwriters.
(f) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxx L.L.P.LLP, special Republic of the Xxxxxxxx Islands counsel for the Company, dated the Closing Date, in form and substance satisfactory to the Underwriters.
(g) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxx RLLP, special United Kingdom counsel for the Company, dated the Closing Date, in form and substance satisfactory to the Underwriters.
(h) The Underwriters shall have received on the Closing Date an opinion and negative assurance letter of Xxxxxx & Xxxxxxx LLP, counsel for the Underwriters, dated the Closing Date and addressed to the UnderwritersDate, in form and substance reasonably satisfactory to the Representatives. With respect to the negative assurance letters to be delivered pursuant to Sections 6(c5(c) and 6(d5(h) above, Xxxxxxxx & Xxxxx LLP and Xxxxxx & Xxxxxx L.L.P. and Xxxxxx & Xxxxxxx LLP may state that their opinions and beliefs are based upon their participation in the preparation of the Registration Statement, the Time of Sale Prospectus and the Prospectus and any amendments or supplements thereto and review and discussion of the contents thereof, but are without independent check or verification, except as specified. The opinion opinions of Xxxxxxxx Xxxxxx & Xxxxx LLP Xxxxxx L.L.P., MJM Limited, Xxxxxxx Xxxxxx Advogados, Xxxxxx & Xxxxxx LLP, and Xxxxxx & Xxxxxx RLLP described in Section 6(cSections 5(c), 5(d), 5(e), 5(f) and 5(g) above shall be rendered to the Underwriters at the request of the Company Parties and shall so state therein.
(ei) The Representatives Underwriters shall have received from Deloitte a “comfort letter” (the “initial comfort letter”) dated as received, on each of the date hereof and addressed to the UnderwritersClosing Date, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of letters dated the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the most recent Time of Sale Prospectus, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(f) The Representatives shall have received from Deloitte a “bring-down comfort letter” (the “bring-down comfort letter”) dated as of the Closing Date or the Option Closing Date, as the case may be, and addressed to the Underwriters, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the Closing Date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter, and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(g) The Representatives shall have received from Von Gonten a letter (the “Initial Expert Letter”), dated as of the date hereof, in form and substance satisfactory to the Representatives, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offerings.
(h) The Representatives shall have received from Von Gonten a subsequent letter, dated as of the Closing Date or the Option Closing Date, as the case may be, in form and substance satisfactory to the Representatives, which such letter shall cover from each of Ernst & Young LLP and KPMG Auditores Independentes, independent public accountants, containing statements and information of the period from type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the Initial Expert Letter to applicable financial statements and certain financial information contained in the Registration Statement, the Time of Sale Prospectus and the Prospectus; provided that the letters delivered on the Closing Date or shall use a “cut-off date” not earlier than the Option Closing Date, as the case may be, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offeringsdate hereof.
(ij) The “lock-up” agreements, each substantially in the form of Exhibit A hereto, between the Representatives and those certain stockholdersshareholders, officers and directors of the Company named in Schedule IV hereto relating to restrictions on sales and certain other dispositions of shares of stock of the Company Common Shares or certain other securities, delivered to the Representatives on or before the date hereofhereof (the “Lock-up Agreements”), shall be in full force and effect on the Closing Date.
(j) The Operative Agreements shall have been executed and delivered by the Company Entities party thereto and shall be in full force and effect on such date.
(k) The several obligations of the Underwriters to purchase Additional Shares hereunder are subject to the delivery to 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(b5(b) hereof remains true and correct as of such Option Closing Date;
(ii) an opinion and negative assurance letter of Xxxxxxxx Xxxxxx & Xxxxx LLPXxxxxx L.L.P., outside U.S. counsel for the Company, dated the Option Closing Date, relating to the Additional Shares to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c5(c) hereof;
(iii) an opinion of Xxxxxx & Xxxxxx L.L.P.MJM Limited, special Bermuda counsel for the UnderwritersCompany, 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(d5(d) hereof;
(iv) a an opinion of Xxxxxxx Xxxxxx Advogados, special Brazilian 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 Xxxxxx & Xxxxxx LLP, special Republic of the Xxxxxxxx Islands 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(f) hereof;
(vi) an opinion of Xxxxxx & Xxxxxx RLLP, special United Kingdom 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(g) hereof;
(vii) 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 in form and substance satisfactory to the Representatives;
(viii) letters dated the Option Closing Date, in form and substance satisfactory to the RepresentativesUnderwriters, from Deloitteeach of Ernst & Young LLP and KPMG Auditores Independentes, independent public accountants, substantially in the same form and substance as the letter respective letters furnished to the Underwriters pursuant to Section 6(f5(k) hereof; provided that the letter letters delivered on the Option Closing Date shall use a “cut-off date” not earlier than three two business days prior to such Option Closing Date;
(v) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Von Gonten, independent reserves engineers, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(h) hereof; and
(viix) such other documents as the Representatives may reasonably request with respect to the good standing of the Company EntitiesCompany, 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 Additional Shares.
Appears in 1 contract
Samples: Underwriting Agreement (Hygo Energy Transition Ltd.)
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 [●] [a.m./p.m.] (4:15 p.m., New York City time) 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) 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 the Company Entities its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of 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 Entitiesand its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus that, in the Representatives’ judgment, is material and adverse and that makes it, in the Representatives’ judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus; and
(iv) 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.
(b) The Representatives Underwriters shall have received on the Closing Date a certificate, dated the Closing Date, addressed to the Underwriters Date and signed by an executive officer of the Company, to the effect set forth in Section 6(a5(a)(ii) above and to the effect that the representations and warranties of the Company Parties contained in this Agreement are true and correct as of the Closing Date and that the Company Parties have 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 Representatives Underwriters shall have received on the Closing Date an opinion and negative assurance letter of Xxxxxxxx & Xxxxx Xxxxxxx Procter LLP, outside counsel for the Company, dated the Closing Date and addressed to the UnderwritersDate, in form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as Exhibit C.Underwriters.
(d) The Representatives Underwriters shall have received on the Closing Date an opinion of Xxxxxxx Xxxx & Xxxxxxx Limited, outside counsel for the Company, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriters.
(e) The Underwriters shall have received on the Closing Date an opinion of each of Xxxxxx LLP and Wolf, Greenfield & Xxxxxx L.L.P.Sacks, P.C., intellectual property counsel for the Company, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriters.
(f) The Underwriters shall have received on the Closing Date an opinion and negative assurance letter of Ropes & Xxxx LLP, counsel for the Underwriters, dated the Closing Date and addressed to the UnderwritersDate, in form and substance reasonably satisfactory to the RepresentativesUnderwriters. With respect to Sections 6(c5(c) and 6(d5(f) above, Xxxxxxxx & Xxxxx Xxxxxxx Procter LLP and Xxxxxx Ropes & Xxxxxx L.L.P. Xxxx LLP, respectively, may state that their opinions and beliefs are based upon their participation in the preparation of the Registration Statement, the Basic Prospectus, 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 Xxxxxxxx & Xxxxx Xxxxxxx Procter LLP described in Section 6(c5(c) above shall be rendered to the Underwriters at the request of the Company Parties and shall so state therein.
(eg) The Representatives Underwriters shall have received from Deloitte a “comfort letter” (the “initial comfort letter”) dated as received, on each of the date hereof and addressed to the UnderwritersClosing Date, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of a letter dated the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the most recent Time of Sale Prospectus, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(f) The Representatives shall have received from Deloitte a “bring-down comfort letter” (the “bring-down comfort letter”) dated as of the Closing Date or the Option Closing Date, as the case may be, and addressed to the Underwriters, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the Closing Date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter, and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(g) The Representatives shall have received from Von Gonten a letter (the “Initial Expert Letter”), dated as of the date hereof, in form and substance satisfactory to the Representatives, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offerings.
(h) The Representatives shall have received from Von Gonten a subsequent letter, dated as of the Closing Date or the Option Closing Date, as the case may be, in form and substance reasonably satisfactory to the RepresentativesUnderwriters, which such 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 contained in the Registration Statement, the Basic Prospectus, the Time of Sale Prospectus and the Prospectus; provided that the letter shall cover the period from the Initial Expert Letter to delivered on the Closing Date or shall use a “cut-off date” not earlier than the Option Closing Date, as the case may be, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offeringsdate hereof.
(ih) The “lock-up” up agreements, each substantially in the form of Exhibit A hereto, between among the Representatives and those the officers, directors and certain stockholders, officers and directors shareholders of the Company named in Schedule IV hereto relating to restrictions on sales and certain other dispositions of shares of stock of the Company Common Stock or certain other securities, delivered to 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 Underwriters shall have received, on each of the date hereof and the Closing Date, a certificate of the Chief Financial Officer of the Company certifying as to the accuracy of certain financial information included in the Registration Statement, the Basic Prospectus, the Time of Sale Prospectus and the Prospectus, in form and substance reasonably satisfactory to the Underwriters.
(j) The Operative Agreements Underwriters shall have been executed received, on each of the date hereof and delivered by at the Company Entities party thereto Closing Date, such other documents as the Representatives may reasonably request with respect to the good standing of the Company, the due authorization and shall issuance of the Shares to be in full force sold on the Closing Date and effect on such dateother matters related to the issuance of the Shares.
(k) The several obligations of the Underwriters to purchase Additional Shares hereunder are subject to the delivery to 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(b5(b) hereof remains true and correct as of such Option Closing Date;
(ii) an opinion and negative assurance letter of Xxxxxxxx Xxxxxxx 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 or opinions required by Section 5(c) hereof;
(iii) an opinion of Xxxxxxx Xxxx & Xxxxx LLPXxxxxxx Limited, 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(c5(d) hereof;
(iiiiv) an opinion of each of Xxxxxx LLP and Wolf, Greenfield & Xxxxxx L.L.P.Sacks, P.C., 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) an opinion and negative assurance letter 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 6(d5(f) hereof;
(ivvi) a letter dated the Option Closing Date, in form and substance satisfactory to the RepresentativesUnderwriters, from DeloitteErnst & Young LLP, independent public accountants, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(f5(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;
(vvii) a letter certificate dated the Option Closing Date, in form Date and substance satisfactory signed by the Chief Financial Officer of the Company certifying as to the Representatives, from Von Gonten, independent reserves engineers, substantially accuracy of certain financial information contained in the same form and substance Prospectus as the letter furnished to the Underwriters pursuant to Section 6(h) hereofof such Option Closing Date; and
(viviii) such other documents as the Representatives may reasonably request with respect to the good standing of the Company EntitiesCompany, 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 Additional Shares.
Appears in 1 contract
Conditions to the Underwriters’ Obligations. The obligations 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 been declared effective by the Commission not later than [●] [a.m./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 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 of the Company or any of the Company Entities Subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) 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 Entitiesand its subsidiaries, taken as a whole, from that set forth in the respective dates of the Registration Statement, the Time of Sale Prospectus and the Prospectus that, in the Representatives’ your judgment, is material and adverse and that makes it, in the Representatives’ your judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Representatives Underwriters shall have received on the Closing Date a certificate, dated the Closing Date, addressed to the Underwriters Date and signed by an executive officer of the CompanyCompany and the General Partner of the Operating Partnership, to the effect set forth in Section 6(a5(a)(i) above and to the effect that the representations and warranties of the Company Parties and the Operating Partnership contained in this Agreement are true and correct as of the Closing Date and that each of the Company Parties have and the Operating Partnership 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 on behalf of the Company and the General Partner of the Operating Partnership may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Representatives shall have received on the Closing Date an opinion of Xxxxxxxx & Xxxxx LLP, outside counsel for the Company, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as Exhibit C.
(d) The Representatives Underwriters shall have received on the Closing Date an opinion of Xxxxxx Xxxxx Xxxxxxxx & Xxxxxx L.L.P.Xxxxxxx LLP, outside counsel for the UnderwritersCompany and the Operating Partnership, dated the Closing Date and addressed Date, with respect to the Underwritersmatters identified in Exhibits A-1 and A-2 hereto. In giving such opinions, such counsel may rely, as to matters of fact, to the extent it deems proper, on certificates of officers of the Company and the General Partner of the Operating Partnership and certificates of public officials.
(d) The Underwriters shall have received on the Closing Date an opinion of Xxxxxxx Xxxxx LLP, Maryland corporate counsel for the Company, dated the Closing Date, with respect to the matters identified in Exhibit B hereto.
(e) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx Xxxxxx LLP, in form and substance reasonably satisfactory to the RepresentativesUnderwriters. With respect In giving such opinion such counsel may rely, as to Sections 6(c) and 6(d) aboveall matters governed by Maryland law, Xxxxxxxx & upon the opinion of Xxxxxxx Xxxxx LLP and Xxxxxx & Xxxxxx L.L.P. 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 Xxxxxxxx & Xxxxx LLP described referred to in Section 6(c) above shall be rendered 5(d). In giving such opinions, such counsel may rely, as to matters of fact, to the Underwriters at the request extent it deems proper, on certificates of officers of the Company Parties and shall so state therein.
(e) The Representatives shall have received from Deloitte a “comfort letter” (the “initial comfort letter”) dated as General Partner of the date hereof Operating Partnership and addressed to the Underwriters, in form and substance satisfactory to the Representatives, (i) confirming that they are independent certificates of public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the most recent Time of Sale Prospectus, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offeringsofficials.
(f) The Representatives Underwriters shall have received from Deloitte a “bring-down comfort letter” (the “bring-down comfort letter”) dated as received, on each of the Closing Date or date hereof and the Option Closing Date, as the case may be, and addressed to the Underwriters, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the Closing Date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than three days prior to letter dated the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter, and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(g) The Representatives shall have received from Von Gonten a letter (the “Initial Expert Letter”), dated as of the date hereof, in form and substance satisfactory to the Representatives, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offerings.
(h) The Representatives shall have received from Von Gonten a subsequent letter, dated as of the Closing Date hereof or the Option Closing Date, as the case may be, in form and substance satisfactory to the RepresentativesUnderwriters, which such 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 financial statements and certain financial information of the Company contained in the Registration Statement, the Time of Sale Prospectus and the Prospectus; provided that the letter shall cover the period from the Initial Expert Letter to 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 letter dated the date hereof or the Option Closing Date, as the case may be, stating in form and substance satisfactory to the conclusions Underwriters, from Deloitte & Touche LLP, an independent registered public accounting firm, containing statements and findings information of such firm the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to reserve certain financial information of Caesars Entertainment Corporation contained in the Registration Statement, the Time of Sale Prospectus and other operational information and other matters as is customary to underwriters in connection with registered public offeringsthe Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
(ih) The “lock-up” agreements, each (i) substantially in the form of Exhibit A D-1 hereto signed by the persons listed on Schedule IV-1 hereto and (ii) substantially in the form of Exhibit D-2 hereto signed by the persons listed on Schedule IV-2 hereto, between the Representatives and those certain stockholders, officers and directors of the Company named in Schedule IV hereto relating to sales and certain other dispositions of shares of stock of the Company Common Stock or certain other securities, delivered to the Representatives 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, dated as of the Closing Date, substantially in the form of Exhibit C hereto.
(j) The Operative Agreements shall have been executed FINRA has confirmed that it has not raised any objection with respect to the fairness and delivered by reasonableness of the Company Entities party thereto underwriting terms and shall be in full force and effect on such datearrangements relating to the offering of the Shares.
(k) On the Closing Date, the Shares shall have been approved for listing on the NYSE, subject only to official notice of issuance.
(l) The several obligations of the Underwriters to purchase Additional Shares hereunder are subject to the delivery to the Representatives 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 CompanyCompany and the General Partner of the Operating Partnership, confirming that the certificate delivered on the Closing Date pursuant to Section 6(b5(b) hereof remains true and correct as of such Option Closing Date;
(ii) an opinion of Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP, outside counsel for the Company and the Operating Partnership, 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 Xxxxx LLP, outside Maryland corporate 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(c5(d) hereof;
(iiiiv) an opinion of Xxxxxx & Xxxxxx L.L.P.Sidley Austin 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(d5(e) hereof;
(ivv) a letter dated the Option Closing Date, in form and substance satisfactory to the RepresentativesUnderwriters, from DeloitteDeloitte & Touche LLP, independent public accountants, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(f5(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;
(vvi) a letter dated the Option Closing Date, in form and substance satisfactory to the RepresentativesUnderwriters, from Von GontenDeloitte & Touche LLP, independent reserves engineerspublic accountants, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(h5(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
(vivii) such other documents as the Representatives you may reasonably request with respect to the good standing of the Company Entitiesand the Operating Partnership, 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 Additional Shares.
Appears in 1 contract
Conditions to the Underwriters’ Obligations. The obligations of the Company to sell the Shares Units to the Underwriters and the several obligations of the Underwriters to purchase and pay for the Shares Units on the Closing Date are subject to the condition that the Registration Statement shall have become effective not later than [●] [a.m./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) 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, to the Company’s knowledge, threatened by the Commission; and
(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 any of the Company Entities by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of 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 Entities, taken as a wholeCompany, from that set forth in the Time of Sale Prospectus that, in the Representatives’ Mxxxxx Xxxxxxx’x judgment, is material and adverse and that makes it, in the Representatives’ Mxxxxx Xxxxxxx’x judgment, impracticable to market the Shares Units on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) 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.
(c) The Representatives Underwriters shall have received on the Closing Date a certificate, dated the Closing Date, addressed to the Underwriters Date and signed by an executive officer of the Company, to the effect set forth in Section 6(aSections 5(a)(i), 5(a)(ii) and 5(a)(iii) above and to the effect that the representations and warranties of the Company Parties contained in this Agreement are true and correct as of the Closing Date and that the Company Parties have 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 Representatives Underwriters shall have received on the Closing Date an opinion and negative assurance letter of Xxxxxxxx Sxxxxxx, Arps, Slate, Mxxxxxx & Xxxxx Fxxx LLP, outside U.S. counsel for the Company, dated the Closing Date and addressed to the UnderwritersDate, in form and substance reasonably satisfactory to the RepresentativesUnderwriters. Mxxxxx and Cxxxxx (Hong Kong) LLP, substantially Cayman Islands counsel for the Company, shall have furnished to the Underwriters their written opinion, dated the Closing Date, in form and substance reasonably satisfactory to the form attached hereto as Exhibit C.Underwriters.
(de) The Representatives Underwriters shall have received on the Closing Date an opinion and negative assurance letter of Xxxxxx Sxxxxxx Xxxxxxx & Xxxxxx L.L.P.Bxxxxxxx LLP, counsel for the Underwriters, dated the Closing Date and addressed to Date, covering such matters as the Underwriters, in form and substance Underwriters shall reasonably satisfactory to the Representativesrequest. With respect to the negative assurance letters to be delivered pursuant to Sections 6(c5(d) and 6(d5(e) above, Xxxxxxxx Skadden, Arps, Slate, Mxxxxxx & Xxxxx Fxxx LLP and Xxxxxx Sxxxxxx Xxxxxxx & Xxxxxx L.L.P. Bxxxxxxx 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 opinions of Xxxxxxxx Skadden, Arps, Slate, Mxxxxxx & Xxxxx Fxxx LLP and Mxxxxx and Cxxxxx (Hong Kong) LLP described in Section 6(c5(d) above shall be rendered to the Underwriters at the request of the Company Parties and shall so state therein.
(e) The Representatives shall have received from Deloitte a “comfort letter” (the “initial comfort letter”) dated as of the date hereof and addressed to the Underwriters, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the most recent Time of Sale Prospectus, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offeringsCompany.
(f) The Representatives Underwriters shall have received from Deloitte a “bring-down comfort letter” (the “bring-down comfort letter”) dated as received, on each of the Closing Date or date hereof and the Option Closing Date, as the case may be, and addressed to the Underwriters, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the Closing Date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than three days prior to letter dated the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter, and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(g) The Representatives shall have received from Von Gonten a letter (the “Initial Expert Letter”), dated as of the date hereof, in form and substance satisfactory to the Representatives, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offerings.
(h) The Representatives shall have received from Von Gonten a subsequent letter, dated as of the Closing Date hereof or the Option Closing Date, as the case may be, in form and substance reasonably satisfactory to the RepresentativesUnderwriters, which such from BDO, 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 cover use a “cut-off date” not earlier than the period from the Initial Expert Letter date hereof.
(g) At least one business day prior to the Closing Date or the Option Closing Date, as applicable, the case may be, stating Company shall have caused a portion of the conclusions and findings proceeds from the sale of the Private Placement Warrants to be deposited into the Trust Account such that the cumulative amount deposited into the Trust Account as of such firm with respect to reserve Closing Date or Option Closing Date shall equal the product of the number of Units sold in the public offering as of such Closing Date or Option Closing Date and other operational information and other matters the public offering price per Unit as is customary to underwriters in connection with registered public offeringsset forth on the cover of the Prospectus.
(i) The “lock-up” agreements, each substantially in the form of Exhibit A hereto, between the Representatives and those certain stockholders, officers and directors of the Company named in Schedule IV hereto relating to sales and certain other dispositions of shares of stock of the Company or certain other securities, delivered to the Representatives on or before the date hereof, shall be in full force and effect on the Closing Date.
(j) The Operative Agreements shall have been executed and delivered by the Company Entities party thereto and shall be in full force and effect on such date.
(kh) The several obligations of the Underwriters to purchase Additional Shares Units hereunder are subject to the delivery to the Representatives Mxxxxx Sxxxxxx 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(b5(c) hereof remains true and correct as of such Option Closing Date;
(ii) an opinion and negative assurance letter of Xxxxxxxx Sxxxxxx, Arps, Slate, Mxxxxxx & Xxxxx Fxxx LLP, outside U.S. counsel for the Company, dated the Option Closing Date, relating to the Additional Shares Units to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c5(d) hereof;
(iii) an opinion of Xxxxxx & Xxxxxx L.L.P.Mxxxxx and Cxxxxx (Hong Kong) LLP, Cayman Islands counsel for the UnderwritersCompany, dated the Option Closing Date, relating to the Additional Shares Units to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(d5(d) hereof;
(iv) an opinion and negative assurance letter of Sxxxxxx Xxxxxxx & Bxxxxxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Additional Units 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 RepresentativesUnderwriters, from DeloitteBDO, independent public accountants, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(f5(f) hereof; provided that the letter delivered on the Option Closing Date shall use a “cut-off date” not earlier than three two business days prior to such Option Closing Date;
(v) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Von Gonten, independent reserves engineers, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(h) hereof; and
(vi) such other documents as the Representatives Mxxxxx Sxxxxxx may reasonably request with respect to the good standing of the Company EntitiesCompany, the due authorization and issuance of the Additional Shares Units to be sold on such Option Closing Date and other matters related to the issuance of such Additional SharesUnits.
Appears in 1 contract
Samples: Underwriting Agreement (Pearl Holdings Acquisition Corp)
Conditions to the Underwriters’ Obligations. The obligations of the Company Selling Stockholders 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] [a.m./p.m.] 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 the Company Entities its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) 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 Entitiesand 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 the Representatives’ your judgment, is material and adverse and that makes it, in the Representatives’ your judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Representatives Underwriters shall have received on the Closing Date a certificate, dated the Closing Date, addressed to the Underwriters Date and signed by an executive officer of the Company, to the effect set forth in Section 6(a) above and to the effect that the representations and warranties of the Company Parties contained in this Agreement are true and correct as of the Closing Date and that the Company Parties have 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 Representatives Underwriters shall have received on the Closing Date an opinion and negative assurance letter of Xxxxx Xxxx & Xxxxxxxx & Xxxxx LLP, outside counsel for the Company, dated the Closing Date and addressed to the UnderwritersDate, in form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as Exhibit C.set forth in Exhibits A-1 and A-2 hereto.
(d) The Representatives Underwriters shall have received on the Closing Date an opinion of Xxxxxx Xxxx X. Xxxxxxx, General Counsel of the Company, dated the Closing Date, in substantially the form set forth in Exhibit B hereto.
(e) The Underwriters shall have received on the Closing Date the opinions of Macfarlanes LLP, Xxxxx & Xxxxxx L.L.P.Xxxxxxx LLP and BÄR & XXXXXX XX, outside counsel for the Selling Stockholders, dated the Closing Date, in substantially the forms set forth in Exhibit C-1, Exhibit C-2 and Exhibit C-3 hereto, respectively.
(f) The Underwriters shall have received on the Closing Date an opinion and negative assurance letter of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, dated the Closing Date and addressed to the UnderwritersDate, in form and substance reasonably satisfactory to the Representatives. With respect to The opinions of Xxxxx Xxxx & Xxxxxxxx LLP, Macfarlanes LLP, Xxxxx & Lardner LLP and BÄR & XXXXXX XX described in Sections 6(c) and 6(d) above, Xxxxxxxx & Xxxxx LLP and Xxxxxx & Xxxxxx L.L.P. 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 Xxxxxxxx & Xxxxx LLP described in Section 6(c6(e) above shall be rendered and addressed to the Underwriters at the request of the Company Parties or one or more of the Selling Stockholders, as the case may be, and shall so state therein.
(eg) The Representatives Underwriters shall have received from Deloitte a “comfort letter” (the “initial comfort letter”) dated as received, on each of the date hereof and addressed to the UnderwritersClosing Date, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of a letter dated the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the most recent Time of Sale Prospectus, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(f) The Representatives shall have received from Deloitte a “bring-down comfort letter” (the “bring-down comfort letter”) dated as of the Closing Date or the Option Closing Date, as the case may be, and addressed to the Underwriters, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the Closing Date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter, and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(g) The Representatives shall have received from Von Gonten a letter (the “Initial Expert Letter”), dated as of the date hereof, in form and substance satisfactory to the Representatives, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offerings.
(h) The Representatives shall have received from Von Gonten a subsequent letter, dated as of the Closing Date or the Option Closing Date, as the case may be, in form and substance satisfactory to the RepresentativesUnderwriters, which such from 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 shall cover the period from the Initial Expert Letter to delivered on the Closing Date or shall use a “cut-off date” not earlier than the Option date hereof.
(h) The Underwriters shall have received on the Closing DateDate a certificate, as dated the case may beClosing Date and signed by the Chief Financial Officer of the Company, stating to the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters effect set forth in connection with registered public offeringsExhibit D hereto.
(i) The “lock-up” agreements, each substantially in the form forms of Exhibit A E-1 and Exhibit E-2 hereto, between the Representatives you and those certain stockholders, officers officers, directors and directors nominees of the Company named in Schedule IV hereto relating to sales and certain other dispositions of shares of stock of the Company Common Stock or certain other securities, delivered to the Representatives you on or before the date hereof, shall be in full force and effect on the Closing Date.
(j) The Operative Agreements shall have been executed and delivered by the Company Entities party thereto and shall be in full force and effect on such date.
(k) The several obligations of the Underwriters to purchase Additional Shares hereunder are subject to the delivery to the Representatives 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(b6(a) hereof remains true and correct as of such Option Closing Date;
(ii) an opinion and negative assurance letter of Xxxxx Xxxx & Xxxxxxxx & Xxxxx 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 & Xxxxxx L.L.P.Xxxx X. Xxxxxxx, counsel for General Counsel of the UnderwritersCompany, 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 Xxxxx & Xxxxxxx 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 opinions required by Section 6(e) hereof;
(v) an opinion and negative assurance letter of Skadden, Arps, Slate, Xxxxxxx & 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 6(f) hereof;
(vi) a letter dated the Option Closing Date, in form and substance satisfactory to the RepresentativesUnderwriters, from DeloitteKPMG LLP, independent public accountants, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(f6(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;
(vvii) a letter certificate, dated the Option Closing DateDate and signed by the Chief Financial Officer of the Company, in form and substance satisfactory to confirming that the Representatives, from Von Gonten, independent reserves engineers, substantially in certificate delivered on the same form and substance as the letter furnished to the Underwriters Closing Date pursuant to Section 6(h) hereofhereof remains true and correct as of such Option Closing Date; and
(viviii) such other documents as the Representatives you may reasonably request with respect to the good standing of the Company EntitiesCompany, 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 Additional Shares.
Appears in 1 contract
Conditions to the Underwriters’ Obligations. The obligations of the ------------------------------------------- Company to sell the Shares to the Underwriters and the several obligations of the Underwriters to purchase and pay for the Shares on the Closing Date are subject to the condition that the Registration Statement shall have become effective not later than [●] [a.m./p.m.] 5:00 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 Company's securities of any of the Company Entities by any “"nationally recognized statistical rating organization,” " as such term is defined in Section 3(a)(62for purposes of Rule 436(g)(2) of 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 Entities, taken as a wholeCompany, from that set forth in the Time Prospectus (exclusive of Sale Prospectus any amendments or supplements thereto subsequent to the date of this Agreement) that, in the Representatives’ your judgment, is material and adverse and that makes it, in the Representatives’ your judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Representatives Underwriters shall have received on the Closing Date a certificate, dated the Closing Date, addressed to the Underwriters Date and signed by an executive officer of the Company, to the effect set forth in Section 6(aclause (a) above and to the effect that the representations and warranties of the Company Parties contained in this Agreement are true and correct as of the Closing Date and that the Company Parties have 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 Representatives shall have received on the Closing Date an opinion of Xxxxxxxx & Xxxxx LLP, outside counsel for the Company, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as Exhibit C.
(d) The Representatives Underwriters shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxx L.L.P., counsel for the Underwriters, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives. With respect to Sections 6(c) and 6(d) above, Xxxxxxx Xxxxxxxx & Xxxxx LLP and Xxxxxx & Xxxxxx L.L.P. may state that their opinions and beliefs are based upon their participation in the preparation of the Registration StatementXxxxxx, 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 Xxxxxxxx & Xxxxx LLP described in Section 6(c) above shall be rendered to the Underwriters at the request of the Company Parties and shall so state therein.
(e) The Representatives shall have received from Deloitte a “comfort letter” (the “initial comfort letter”) dated as of the date hereof and addressed to the Underwriters, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the most recent Time of Sale Prospectus, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(f) The Representatives shall have received from Deloitte a “bring-down comfort letter” (the “bring-down comfort letter”) dated as of the Closing Date or the Option Closing Date, as the case may be, and addressed to the Underwriters, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the Closing Date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter, and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(g) The Representatives shall have received from Von Gonten a letter (the “Initial Expert Letter”), dated as of the date hereof, in form and substance satisfactory to the Representatives, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offerings.
(h) The Representatives shall have received from Von Gonten a subsequent letter, dated as of the Closing Date or the Option Closing Date, as the case may be, in form and substance satisfactory to the Representatives, which such letter shall cover the period from the Initial Expert Letter to the Closing Date or the Option Closing Date, as the case may be, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offerings.
(i) The “lock-up” agreements, each substantially in the form of Exhibit A hereto, between the Representatives and those certain stockholders, officers and directors of the Company named in Schedule IV hereto relating to sales and certain other dispositions of shares of stock of the Company or certain other securities, delivered to the Representatives on or before the date hereof, shall be in full force and effect on the Closing Date.
(j) The Operative Agreements shall have been executed and delivered by the Company Entities party thereto and shall be in full force and effect on such date.
(k) The several obligations of the Underwriters to purchase Additional Shares hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate, dated the Option Closing Date and signed by an executive officer of the Company, confirming that the certificate delivered on the Closing Date pursuant to Section 6(b) hereof remains true and correct as of such Option Closing Date;
(ii) an opinion of Xxxxxxxx & Xxxxx LLPProfessional Corporation, outside counsel for the Company, dated the Option Closing Date, relating to the Additional Shares effect that:
(i) 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 or property requires such qualification, except to the extent that the failure to be purchased so qualified or be in good standing would not have a material adverse effect on such Option Closing Date the Company and otherwise its subsidiaries, taken as a whole; and the Company has no subsidiary or subsidiaries and does not control, directly or indirectly, any corporation, partnership, joint venture, association or other business organization.
(ii) the authorized capital stock of the Company conforms as to legal matters to the same effect as description thereof contained in the opinion required by Section 6(c) hereofProspectus;
(iii) an opinion the shares of Xxxxxx & Xxxxxx L.L.P., counsel for the Underwriters, dated the Option Closing Date, relating Common Stock outstanding prior to the Additional issuance of the Shares to be purchased on such Option Closing Date have been duly authorized and otherwise to the same effect as the opinion required by Section 6(d) hereofare validly issued, fully paid and non-assessable;
(iv) a letter dated the Option Closing DateShares have been duly authorized and, when issued and delivered in form accordance with the terms of this Agreement, will be validly issued, fully paid and substance satisfactory non-assessable, and the issuance of such Shares will not be subject to the Representatives, from Deloitte, 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 three business days prior to such Option Closing Dateany preemptive or similar rights;
(v) a letter dated this Agreement has been duly authorized, executed and delivered by the Option Closing Date, in form and substance satisfactory to the Representatives, from Von Gonten, independent reserves engineers, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(h) hereof; andCompany;
(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 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 that is material to the Company 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, 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 "____________________", "____________________" "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 as or proceedings referred to therein, fairly present the Representatives may reasonably request information called for with respect to such legal matters, documents and proceedings and fairly summarize the good standing of the Company Entities, the due authorization and issuance of the Additional Shares matters referred to be sold on such Option Closing Date and other matters related to the issuance of such Additional Shares.therein;
Appears in 1 contract
Conditions to the Underwriters’ Obligations. The obligations of the Company to sell issue the Shares Shares, as applicable, to the Underwriters and the several obligations of the Underwriters to subscribe for, 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 [●] [a.m./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 the Company Entities its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) 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 Entitiesand its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus that, in the Representatives’ your judgment, is material and adverse and that makes it, in the Representatives’ your judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Representatives Underwriters shall have received on the Closing Date a certificate, dated the Closing Date, addressed to the Underwriters Date and signed by an executive officer of the Company, to the effect set forth in Section 6(a5(a)(i) above and to the effect that the representations and warranties of the Company Parties contained in this Agreement are true and correct as of the Closing Date and that the Company Parties have 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 Representatives Underwriters shall have received on the Closing Date a certificate of the chief financial officer of the Company with respect to certain information in the Prospectus and Time of Sale Prospectus, in the form attached hereto as Annex C.
(d) The Underwriters shall have received on the Closing Date an opinion of Xxxxxxxx Xxxxxxx Xxxx & Xxxxx Xxxxxxxxx LLP, outside counsel for the Company, dated the Closing Date, substantially in the form attached hereto as Exhibit A.
(e) The Underwriters shall have received on the Closing Date and addressed to an opinion of Xxxxxx & Xxxxxxxxx, Luxembourg counsel for the UnderwritersCompany, dated the Closing Date, substantially in the form and substance reasonably satisfactory to attached hereto as Exhibit B.
(f) The Underwriters shall have received on the RepresentativesClosing Date an opinion from GANADO Advocates, Malta counsel for the Company, dated the Closing Date, substantially in the form attached hereto as Exhibit C.
(dg) The Representatives Underwriters shall have received on the Closing Date an opinion from Xxxxxxx Xxxx & Xxxxxxx, British Virgin Islands counsel for the Company, dated the Closing Date, substantially in the form attached hereto as Exhibit D.
(h) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx Cravath, Swaine & Xxxxxx L.L.P.Xxxxx LLP, counsel for the Underwriters, dated the Closing Date and addressed to the UnderwritersDate, in form and substance reasonably satisfactory to the RepresentativesManagers. With respect to Sections 6(c) and 6(d) aboveThe opinions of Xxxxxxx Xxxx & Xxxxxxxxx LLP, Xxxxxxxx & Xxxxx LLP and Xxxxxx & Xxxxxx L.L.P. may state that their opinions Xxxxxxxxx, GANADO Advocates, 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 Xxxxxxxx Xxxxxxx Xxxx & Xxxxx LLP Xxxxxxx described in Section 6(cSections 5(d), 5(e), 5(f), and 5(g) above shall be rendered to the Underwriters at the request of the Company Parties and shall so state therein.
(ei) The Representatives Underwriters shall have received from Deloitte a “comfort letter” (the “initial comfort letter”) dated as received, on each of the date hereof and addressed to the UnderwritersClosing Date, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of a letter dated the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the most recent Time of Sale Prospectus, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(f) The Representatives shall have received from Deloitte a “bring-down comfort letter” (the “bring-down comfort letter”) dated as of the Closing Date or the Option Closing Date, as the case may be, and addressed to the Underwriters, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the Closing Date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter, and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(g) The Representatives shall have received from Von Gonten a letter (the “Initial Expert Letter”), dated as of the date hereof, in form and substance satisfactory to the Representatives, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offerings.
(h) The Representatives shall have received from Von Gonten a subsequent letter, dated as of the Closing Date or the Option Closing Date, as the case may be, in form and substance satisfactory to the RepresentativesUnderwriters, which from each of (i) Ernst & Young LLP (UK), (ii) Ernst & Young GmbH Wirtschaftsprüfungsgesellschaft, (iii) Ernst & Young Malta Limited and (iv) Deloitte Accountants B.V., each an independent registered accounting firm, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements audited by such firm and certain financial information contained in the Registration Statement, the Time of Sale Prospectus and the Prospectus; provided that the letter shall cover the period from the Initial Expert Letter to delivered on the Closing Date or shall use a “cut-off date” not earlier than the Option Closing Date, as the case may be, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offeringsdate hereof.
(ij) The “lock-up” agreements, each substantially in the form of Exhibit A E hereto, between you and the Representatives and those certain stockholdersshareholders, officers and directors of the Company named in Schedule IV hereto relating to sales and certain other dispositions of shares of stock of the Company Common Shares or certain other securities, delivered to the Representatives you on or before the date hereof, shall be in full force and effect on the Closing Date.
(j) The Operative Agreements shall have been executed and delivered by the Company Entities party thereto and shall be in full force and effect on such date.
(k) . The several obligations of the Underwriters to purchase Additional Shares hereunder are subject to the delivery to the Representatives 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 Xxxxxxxx & Xxxxx 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 & Xxxxxx L.L.P., 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(d) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Deloitte, 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 three business days prior to such Option Closing Date;
(v) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Von Gonten, independent reserves engineers, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(h) hereof; and
(vi) such other documents as the Representatives you may reasonably request with respect to the good standing valid existence of the Company EntitiesCompany, 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 Additional Shares.
Appears in 1 contract
Conditions to the Underwriters’ Obligations. The obligations of the Company to sell the Shares to the Underwriters and the several obligations of the Underwriters to purchase and pay for the Shares on the Closing Date are subject to the condition that the Registration Statement shall have become effective not later than [●] [a.m./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 Company's securities of any of (including, without limitation, the Company Entities 10% Senior Notes due 2012 issued by Alpha Natural Resources, LLC and Alpha Natural Resources Capital Corp.) by any “"nationally recognized statistical rating organization,” " as such term is defined in Section 3(a)(62for purposes of Rule 436(g)(2) of 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, properties, business or operations of the Company Entitiesand its subsidiaries, taken as a whole, from that set forth in the Time Prospectus (exclusive of Sale Prospectus any amendments or supplements thereto subsequent to the date of this Agreement) that, in the Representatives’ judgmentjudgment of the Managers, is material and adverse and that makes it, in the Representatives’ judgmentjudgment of the Managers, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Representatives Underwriters shall have received on the Closing Date a certificate, dated the Closing Date, addressed to the Underwriters Date and signed by an executive officer of the Company, to the effect set forth in Section 6(a5(a)(ii) above and to the effect that the representations and warranties of the Company Parties contained in this Agreement that are not qualified by materiality are true and correct in all material respects, and that the representations and warranties of the Company contained in this Agreement that are qualified by materiality are true and correct, in each case, as of the Closing Date Date, and that the Company Parties have 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 Representatives Underwriters shall have received on the Closing Date (i) an opinion and negative assurance statement of Bartlit Beck Herman Palenchar & Scott LLP, special counsel for the Companx, xdxxxxxxx xx xxx Xnderwritxxx and substantially in the form of Exhibits B and C hereto; (ii) an opinion of Simpson Thatcher & Bartlett LLP, special counsel for the Company, xxxxxxsxx xx xxe Uxxxxxxxxers and substantially in the form of Exhibit D hereto; and (iii) an opinion and negative assurance statement of Vaughn R. Groves, Vice President and General Counsel of the Compaxx, xxxxxxxxx xx xxx Underwriters and substantially in the form of Exhibit E hereto, in each case dated the Closing Date.
(d) The Underwriters shall have received on the Closing Date an opinion of Xxxxxxxx Latham & Xxxxx Watkins LLP, outside counsel for the Company, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as Exhibit C.
(d) The Representatives shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxx L.L.P., counsel for the Underwriters, dated the Closing Date and addressed Cloxxxx Xate, xxxx respect to the Underwritersincorporation of the Company, in form and substance reasonably satisfactory to the Representatives. With respect to Sections 6(c) and 6(d) abovevalidity of the Shares delivered on such Closing Date, Xxxxxxxx & Xxxxx LLP and Xxxxxx & Xxxxxx L.L.P. 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 other related matters as the Prospectus Managers may require, 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 Xxxxxxxx & Xxxxx LLP described in Section 6(c) above shall be rendered to the Underwriters at the request of the Company Parties and shall so state thereinhave furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(e) The Representatives Underwriters shall have received from Deloitte a “comfort letter” (the “initial comfort letter”) dated as received, on each of the date hereof and addressed to the UnderwritersClosing Date, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of a letter dated the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the most recent Time of Sale Prospectus, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(f) The Representatives shall have received from Deloitte a “bring-down comfort letter” (the “bring-down comfort letter”) dated as of the Closing Date or the Option Closing Date, as the case may be, and addressed to the Underwriters, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the Closing Date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter, and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(g) The Representatives shall have received from Von Gonten a letter (the “Initial Expert Letter”), dated as of the date hereof, in form and substance satisfactory to the Representatives, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offerings.
(h) The Representatives shall have received from Von Gonten a subsequent letter, dated as of the Closing Date or the Option Closing Date, as the case may be, in form and substance satisfactory to the RepresentativesUnderwriters, which such from 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 and the Prospectus; provided that the letter shall cover the period from the Initial Expert Letter to delivered on the Closing Date or shall use a "cut-off date" not earlier than the Option Closing Datedate hereof.
(f) The Underwriters shall have received on the date hereof, as a certificate dated the case may bedate hereof, stating in form and substance satisfactory to the conclusions Underwriters, from David Stuebe, Vice President and findings Chief Financial Officer of such firm the Cxxxxxx, xxxxaining statements with respect to reserve certain financial information contained in the Registration Statement and the Prospectus.
(g) The transactions described in the Prospectus under the caption "Internal Restructuring" shall have been consummated; other operational information than the repurchase of the Restructuring Notes (as defined therein) with the net proceeds from the issuance and other matters as is customary sale of the Shares which will occur promptly following the Closing Date.
(h) The Shares shall been approved for listing on the New York Stock Exchange, subject to underwriters in connection with registered public offeringsnotice of issuance.
(i) The “"lock-up” " agreements, each substantially in the form of Exhibit A hereto, between the Representatives you and those certain stockholders, officers and directors of the Company named in Schedule IV hereto and the Existing Holders relating to sales and certain other dispositions of shares of stock of the Company Common Stock or certain other securities, delivered to the Representatives you on or before the date hereof, shall be in full force and effect on the Closing Date.
(j) The Operative Agreements shall have been executed and delivered by the Company Entities party thereto and shall be in full force and effect on such date.
(k) . The several obligations of the Underwriters to purchase Additional Shares hereunder are subject to the delivery to the Representatives 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 Xxxxxxxx & Xxxxx 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 & Xxxxxx L.L.P., 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(d) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Deloitte, 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 three business days prior to such Option Closing Date;
(v) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Von Gonten, independent reserves engineers, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(h) hereof; and
(vi) such other documents as the Representatives you may reasonably request with respect to the good standing of the Company EntitiesCompany, 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 Additional Shares.
Appears in 1 contract
Samples: Underwriting Agreement (Alpha Natural Resources, 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 [●] [a.m./p.m.] 6:00 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 the Company Entities Subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) 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 Entitiesand the Subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus as of the date of this Agreement that, in the Representatives’ your judgment, is material and adverse and that makes it, in the Representatives’ your judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Representatives Underwriters shall have received on the Closing Date a certificate, dated the Closing Date, addressed to the Underwriters Date and signed by an executive officer of the CompanyCompany and the Operating Partnership, to the effect set forth in Section 6(aSections 5(a)(i) and 5(a)(ii) above and to the effect that the representations and warranties of the Company Parties and the Operating Partnership contained in this Agreement are true and correct as of the Closing Date and that the Company Parties and the Operating Partnership have complied with all of the agreements and satisfied all of the conditions on its their respective 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 Representatives 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, and signed by the Chief Financial Officer of the Company and the Operating Partnership, in the form and substance reasonably satisfactory to the Underwriters and their counsel.
(d) The Underwriters shall have received on the Closing Date an opinion the opinions of Xxxxxxxx Xxxxxx & Xxxxx Xxxxxxx LLP, outside counsel for the CompanyCompany and the Operating Partnership, dated the Closing Date and addressed Date, with respect to the Underwriters, matters identified in form Exhibits A-1 and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as Exhibit C.
(d) A-2 hereto. The Representatives shall have received on the Closing Date an opinion opinions of Xxxxxx & Xxxxxx L.L.P., counsel for the Underwriters, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives. With respect to Sections 6(c) and 6(d) above, Xxxxxxxx & Xxxxx LLP and Xxxxxx & Xxxxxx L.L.P. 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 Xxxxxxxx & Xxxxx Xxxxxxx LLP described in Section 6(c) above Exhibits A-1 and A-2 shall be rendered to the Underwriters at the request of the Company Parties and shall so state therein. The opinions of Xxxxxx & Xxxxxxx LLP described in Exhibits A-1 and A-2 may also state that, insofar as such opinions involve factual matters, Xxxxxx & Xxxxxxx LLP has relied, to the extent they deem proper, upon certificates of officers of the Company.
(e) The Underwriters shall have received on the Closing Date an opinion of Xxxxxxx Xxxxx LLP, special Maryland counsel to the Company, with respect to the matters identified in Exhibit B hereto. The opinions of Xxxxxxx Xxxxx LLP described in Exhibit B shall be rendered to the Underwriters at the request of the Company and shall so state therein.
(ef) The Representatives Underwriters shall have received from Deloitte a “comfort letter” (on the “initial comfort letter”) Closing Date an opinion of Xxxxxxxx Chance US LLP, counsel for the Underwriters, dated as of the date hereof Closing Date, in the form and addressed substance reasonably satisfactory to the Underwriters. In giving such opinion such counsel may rely, as to all matters governed by Maryland law, upon the opinion of Xxxxxxx Xxxxx LLP referred to in form and substance satisfactory Section 5(e) above. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the Representativesextent they deem proper, (i) confirming that they are independent public accountants within the meaning upon certificates of officers of the Securities Act Company and are in compliance with the applicable requirements relating to the qualification certificates of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the most recent Time of Sale Prospectus, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(f) The Representatives shall have received from Deloitte a “bring-down comfort letter” (the “bring-down comfort letter”) dated as of the Closing Date or the Option Closing Date, as the case may be, and addressed to the Underwriters, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the Closing Date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter, and (iii) confirming in all material respects the conclusions and findings set forth in the initial letterofficials.
(g) The Representatives Underwriters shall have received from Von Gonten a letter (on the “Initial Expert Letter”)Closing Date an opinion of the General Counsel of the Company, dated as of the date hereofClosing Date, in form and substance satisfactory to the Representatives, stating the conclusions and findings of such firm with respect to reserve the matters identified in Exhibit C hereto. The opinions of General Counsel of the Company described in Exhibit C shall be rendered to the Underwriters at the request of the Company and other operational information and other matters as is customary to underwriters in connection with registered public offeringsshall so state therein.
(h) The Representatives Underwriters shall have received from Von Gonten a subsequent letterreceived, dated as on each of the date hereof and the Closing Date Date, a letter dated the date hereof or the Option Closing Date, as the case may be, in form and substance satisfactory to the RepresentativesUnderwriters, which such 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 financial statements and certain financial information contained in the Registration Statement, the Time of Sale Prospectus and the Prospectus; provided that the letter shall cover the period from the Initial Expert Letter to delivered on the Closing Date or shall use a “cut-off date” not earlier than two days prior to the Option date hereof and the Closing Date, as the case may be, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offeringsapplicable.
(i) The “lock-up” agreements, each substantially in the form of Exhibit A D-1 hereto, between the Representatives you and those certain stockholders, officers and directors of the Company named identified in Schedule IV Exhibit D-2 hereto relating to sales and certain other dispositions of shares of stock of the Company Common Stock or certain other securities, delivered to the Representatives you on or before the date hereof, shall be in full force and effect on the Closing Date.
(j) The Operative Agreements shall have been executed and delivered by the Company Entities party thereto and shall be in full force and effect on such date.
(k) . The several obligations of the Underwriters to purchase Additional Shares hereunder are subject to the delivery to the Representatives 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 Xxxxxxxx & Xxxxx 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 & Xxxxxx L.L.P., 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(d) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Deloitte, 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 three business days prior to such Option Closing Date;
(v) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Von Gonten, independent reserves engineers, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(h) hereof; and
(vi) such other documents as the Representatives you may reasonably request with respect to the good standing of the Company Entitiesand the Subsidiaries, 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 Additional Shares.
Appears in 1 contract
Conditions to the Underwriters’ Obligations. The obligations of the Company to sell the Shares Securities to the Underwriters and the several obligations of the Underwriters to purchase and pay for the Shares Securities on the Closing Date are subject to the condition that the Registration Statement shall have become effective not later than [●] [a.m./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) 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 any of the Company Entities or its subsidiary by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of 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 Entities, taken as a whole, or its subsidiary from that set forth in the Time of Sale Prospectus that, in the Representatives’ your judgment, is material and adverse and that makes it, in the Representatives’ your judgment, impracticable to market the Shares Securities on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Representatives Underwriters shall have received on the Closing Date a certificate, dated the Closing Date, addressed to the Underwriters Date and signed by an executive officer of the Company on behalf of the Company, to the effect set forth in Section 6(a5(a)(i) and 5(a)(ii) above and to the effect that the representations and warranties of the Company Parties contained in this Agreement are true and correct as of the Closing Date and that the Company Parties have 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 Representatives Underwriters shall have received on the Closing Date an opinion and negative assurance letter of Xxxxxxxx & Xxxxx Wxxxxx Xxxxxx Pxxxxxxxx Xxxx and Dxxx LLP, outside counsel for the Company, dated the Closing Date, substantially in the form of Exhibit C hereto.
(d) The Underwriters shall have received on the Closing Date an opinion and addressed to negative assurance letter of Dxxxx Xxxx & Wxxxxxxx LLP, counsel for the Underwriters, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as Exhibit C.Representative.
(de) The Representatives Underwriters shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxx L.L.P.Hxxx Partners, primary intellectual property counsel for the UnderwritersCompany, dated the Closing Date and addressed to the UnderwritersDate, in form and substance reasonably satisfactory to the Representatives. With respect to Sections 6(c) and 6(d) above, Xxxxxxxx & Xxxxx LLP and Xxxxxx & Xxxxxx L.L.P. may state that their opinions and beliefs are based upon their participation substantially in the preparation form of Exhibit D hereto.
(f) The Underwriters shall have received on the Registration StatementClosing Date an opinion of Cxxxxx LLP, intellectual property counsel for the Time Company, dated the Closing Date, substantially in the form 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 specifiedExhibit E hereto. The opinion of Xxxxxxxx & Xxxxx Wxxxxx Xxxxxx Pxxxxxxxx Xxxx and Dxxx LLP described in Section 6(c5(c) above, the opinion of Hxxx Partners described in Section 5(e) above and the opinion of Cxxxxx LLP described in Section 5(f) above shall be rendered to the Underwriters at the request of the Company Parties and shall so state therein.
(eg) The Representatives Underwriters shall have received from Deloitte a “comfort letter” (the “initial comfort letter”) dated as received, on each of the date hereof and addressed to the UnderwritersClosing Date, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of a letter dated the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the most recent Time of Sale Prospectus, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(f) The Representatives shall have received from Deloitte a “bring-down comfort letter” (the “bring-down comfort letter”) dated as of the Closing Date or the Option Closing Date, as the case may be, and addressed to the Underwriters, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the Closing Date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter, and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(g) The Representatives shall have received from Von Gonten a letter (the “Initial Expert Letter”), dated as of the date hereof, in form and substance satisfactory to the Representatives, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offerings.
(h) The Representatives shall have received from Von Gonten a subsequent letter, dated as of the Closing Date or the Option Closing Date, as the case may be, in form and substance satisfactory to the RepresentativesUnderwriters, which such 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 contained in the Registration Statement, the Time of Sale Prospectus and the Prospectus; provided that the letter shall cover the period from the Initial Expert Letter to delivered on the Closing Date or shall use a “cut-off date” not earlier than the Option Closing Date, as the case may be, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offeringsdate hereof.
(ih) The “lock-up” agreements, each substantially in the form of Exhibit A B hereto, between the Representatives you and those certain stockholders, officers and directors of the Company named in Schedule IV hereto relating to sales and certain other dispositions of shares of stock of the Company Common Stock or certain other securities, delivered to the Representatives you on or before the date hereof, shall be in full force and effect on the Closing Date.
(j) The Operative Agreements shall have been executed and delivered by the Company Entities party thereto and shall be in full force and effect on such date.
(k) Date The several obligations of the Underwriters to purchase Additional Shares hereunder are subject to the delivery to the Representatives 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 Xxxxxxxx & Xxxxx 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 & Xxxxxx L.L.P., 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(d) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Deloitte, 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 three business days prior to such Option Closing Date;
(v) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Von Gonten, independent reserves engineers, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(h) hereof; and
(vi) such other documents as the Representatives you may reasonably request with respect to the good standing of the Company EntitiesCompany, the due authorization and issuance of the Additional Shares to be sold on such Option Closing Date and other matters related to the issuance or sale of such Additional Shares.
Appears in 1 contract
Conditions to the Underwriters’ Obligations. The obligations of the Company each Selling Shareholder to sell the Shares ADSs to the Underwriters and the several obligations of the Underwriters to purchase and pay for the Shares ADSs on the Closing Date are subject to the condition that the Registration Statement shall have become effective not later than [●] [a.m./p.m.] 4:30 p.m. (New York City time) on the date hereof. The several obligations of the Underwriters are subject to the following further conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of any of the Company Entities by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of 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 Entitiesand its Subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus that, in the judgment of the Representatives’ judgment, is material and adverse and that makes it, in the judgment of the Representatives’ judgment, impracticable to market the Shares ADSs on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Representatives Underwriters shall have received on the Closing Date a certificate, dated the Closing Date, addressed to the Underwriters Date and signed by an executive officer of the Company, to the effect set forth in Section 6(a), Section 6(p) above and Section 6(u) and to the effect that the representations and warranties of the Company Parties contained in this Agreement are true and correct as of the Closing Date and that the Company Parties have 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 Representatives Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an authorized signatory of each 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 such Selling Shareholder has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date.
(d) The Underwriters shall have received on the Closing Date an opinion and negative assurance letter of Xxxxx Xxxx & Xxxxxxxx, U.S. counsel for the Company, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriters.
(e) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx and Xxxxxx (Hong Kong) LLP, Cayman Islands counsel for the Company, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriters.
(f) The Underwriters shall have received on the Closing Date an opinion of JunHe LLP, PRC counsel for the Company, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriters.
(g) The Underwriters shall have received on the Closing Date an opinion of Xxxxx Xxxx & Xxxxxxxx, Hong Kong counsel for the Company, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriters.
(h) The Underwriters shall have received on the Closing Date an opinion of Xxxxxxxx & Xxxxx LLP, outside U.S. counsel for the CompanySelling Shareholders, dated the Closing Date and addressed to the UnderwritersDate, in form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as Exhibit C.Underwriters.
(di) The Representatives Underwriters shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxx L.L.P.Xxxxx XXX, PRC counsel for the UnderwritersSelling Shareholders, dated the Closing Date and addressed to the UnderwritersDate, in form and substance reasonably satisfactory to the Representatives. With respect to Sections 6(c) and 6(d) above, Xxxxxxxx & Xxxxx LLP and Xxxxxx & Xxxxxx L.L.P. 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 specifiedUnderwriters. The opinions of counsel for the Company (except for the opinion of Xxxxxxxx & Xxxxx LLP PRC counsel for the Company) described in Section 6(c) above shall be rendered to the Underwriters at the request of the Company Parties Company, and shall so state therein.
(ej) The Representatives Underwriters shall have received from Deloitte a “comfort letter” (on the “initial comfort letter”) dated as Closing Date an opinion and negative assurance letter of the date hereof and addressed to Xxxxxx & Xxxxxxx LLP, U.S. counsel for the Underwriters, dated the Closing Date, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the most recent Time of Sale Prospectus, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offeringsUnderwriters.
(fk) The Representatives Underwriters shall have received from Deloitte a “bring-down comfort letter” (the “bring-down comfort letter”) dated as of on the Closing Date or an opinion of Xxxxx Xxx Law Firm, PRC counsel for the Option Underwriters, dated the Closing Date, as the case may be, and addressed to the Underwriters, in form and substance satisfactory to the Representatives, Underwriters.
(il) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of The Underwriters shall have received on the Closing Date (oran opinion of Xxxxx, with respect to matters involving changes or developments since Xxxxxx & Xxxxxx XXX, counsel for the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter, and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(g) The Representatives shall have received from Von Gonten a letter (the “Initial Expert Letter”)Depositary, dated as of the date hereofClosing Date, in form and substance satisfactory to the Representatives, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offerings.Underwriters.
(hm) The Representatives Underwriters shall have received from Von Gonten a subsequent letterreceived, dated as on each of the date hereof and the Closing Date Date, a letter dated the date hereof or the Option Closing Date, as the case may be, in form and substance satisfactory to the RepresentativesUnderwriters, which such from KPMG Huazhen 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 shall cover the period from the Initial Expert Letter to delivered on the Closing Date or shall use a “cut-off date” not earlier than the Option Closing Date, as the case may be, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offeringsdate hereof.
(in) The “lock-up” agreements, each substantially in the form of Exhibit A hereto, between the Company, the Representatives and those certain stockholders, officers Xx. Xxxxxx Xxxx and directors of the Company named in Schedule IV hereto Selling Shareholders relating to sales and certain other dispositions of shares of stock of the Company ADSs, Ordinary Shares or certain other securities, delivered to the Representatives on or before the date hereof, shall be in full force and effect on the Closing Date.
(j) The Operative Agreements shall have been executed and delivered by the Company Entities party thereto and shall be in full force and effect on such date.
(ko) The several obligations of the Underwriters to purchase Additional Shares ADSs hereunder are subject to the delivery to 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) a certificate, dated the Option Closing Date and signed by an authorized signatory of each Selling Shareholder, confirming that the certificate delivered on the Closing Date pursuant to Section 6(c) hereof remains true and correct as of such Option Closing Date;
(iii) an opinion of and negative assurance letter Xxxxx Xxxx & Xxxxxxxx & Xxxxx LLP, outside U.S. counsel for the Company, dated the Option Closing Date, relating to the Additional Shares to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof;
(iii) an opinion of Xxxxxx & Xxxxxx L.L.P., counsel for the Underwriters, dated the Option Closing Date, relating to the Additional Shares 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 Xxxxxx and Xxxxxx (Hong Kong) LLP, 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(e) hereof;
(v) an opinion of JunHe LLP, 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(f) hereof;
(vi) an opinion of Xxxxx Xxxx & Xxxxxxxx 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(g) hereof;
(vii) 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(j) hereof;
(viii) an opinion of Xxxxx Xxx 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(k) hereof;
(ix) an opinion of Xxxxx, Xxxxxx & Xxxxxx XXX, 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(l) hereof;
(x) a letter dated the Option Closing Date, in form and substance satisfactory to the RepresentativesUnderwriters, from DeloitteKPMG Huazhen LLP, independent public accountants, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(f6(m) 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;
(vxi) a letter an opinion of Xxxxxxxx & Xxxxx LLP, U.S. counsel for the Selling Shareholders, dated the Option Closing Date, in form and substance satisfactory relating to the Representatives, from Von Gonten, independent reserves engineers, substantially in Additional ADSs to be purchased on such Option Closing Date and otherwise to the same form and substance effect as the letter furnished opinion required by Section 6(h) hereof;
(xii) an opinion of Xxxxx XXX, PRC counsel for the Selling Shareholders, dated the Option Closing Date, relating to the Underwriters pursuant Additional ADSs to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(h6(i) hereof; and
(vixiii) such other documents as the Representatives may reasonably request with respect to the good standing of the Company EntitiesCompany, the due authorization and issuance of the Additional Shares ADSs to be sold on such Option Closing Date and other matters related to the issuance of such Additional SharesADSs.
(p) 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.
(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) 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 4:30 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.
(s) 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.
(t) 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.
(u) 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.
(v) 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.
(w) 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.
(x) 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 (Atour Lifestyle Holdings LTD)
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 [●] [a.m./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:
(iiii) 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;
(iv) 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 the Company Entities its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”); and
(iiv) 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 Entitiesand its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus that, in the judgment of the Representatives’ judgment, is material and adverse and that makes it, in the judgment of the Representatives’ judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Representatives shall have received on the Closing Date a certificate, dated the Closing Date, addressed to the Underwriters and signed by an executive officer of the Company, to the effect set forth in Section 6(a) above and to the effect that the representations and warranties of the Company Parties contained in this Agreement are true and correct as of the Closing Date and that the Company Parties 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 Representatives shall have received on the Closing Date an opinion of Xxxxxxxx & Xxxxx LLP, outside counsel for the Company, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as Exhibit C.
(d) The Representatives shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxx L.L.P., counsel for the Underwriters, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives. With respect to Sections 6(c) and 6(d) above, Xxxxxxxx & Xxxxx LLP and Xxxxxx & Xxxxxx L.L.P. 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 Xxxxxxxx & Xxxxx LLP described in Section 6(c) above shall be rendered to the Underwriters at the request of the Company Parties and shall so state therein.
(e) The Representatives shall have received from Deloitte a “comfort letter” (the “initial comfort letter”) dated as of the date hereof and addressed to the Underwriters, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the most recent Time of Sale Prospectus, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(f) The Representatives shall have received from Deloitte a “bring-down comfort letter” (the “bring-down comfort letter”) dated as of the Closing Date or the Option Closing Date, as the case may be, and addressed to the Underwriters, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the Closing Date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter, and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(g) The Representatives shall have received from Von Gonten a letter (the “Initial Expert Letter”), dated as of the date hereof, in form and substance satisfactory to the Representatives, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offerings.
(h) The Representatives shall have received from Von Gonten a subsequent letter, dated as of the Closing Date or the Option Closing Date, as the case may be, in form and substance satisfactory to the Representatives, which such letter shall cover the period from the Initial Expert Letter to the Closing Date or the Option Closing Date, as the case may be, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offerings.
(i) The “lock-up” agreements, each substantially in the form of Exhibit A hereto, between the Representatives and those certain stockholders, officers and directors of the Company named in Schedule IV hereto relating to sales and certain other dispositions of shares of stock of the Company or certain other securities, delivered to the Representatives on or before the date hereof, shall be in full force and effect on the Closing Date.
(j) The Operative Agreements shall have been executed and delivered by the Company Entities party thereto and shall be in full force and effect on such date.
(k) The several obligations of the Underwriters to purchase Additional Shares hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate, dated the Option Closing Date and signed by an executive officer of the Company, confirming that the certificate delivered on the Closing Date pursuant to Section 6(b) hereof remains true and correct as of such Option Closing Date;
(ii) an opinion of Xxxxxxxx & Xxxxx 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 & Xxxxxx L.L.P., 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(d) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Deloitte, 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 three business days prior to such Option Closing Date;
(v) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Von Gonten, independent reserves engineers, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(h) hereof; and
(vi) such other documents as the Representatives may reasonably request with respect to the good standing of the Company Entities, 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 Additional Shares.
Appears in 1 contract
Samples: Underwriting Agreement (Driven Brands 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 such Shares on the Closing Date of the Closing with respect to the Shares are subject to the condition that the Registration Statement shall have become effective not later than [●] [a.m./p.m.] April __, 2014 (New York City time) on the date hereofof this Agreement. 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 applicable 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 change that does not indicate the direction of the possible change, in the rating accorded any of the securities of any of the Company Entities by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) 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 Entitiesand its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus that, in the Representatives’ judgment, that is material and adverse and that makes it, in the RepresentativesUnderwriters’ good faith and reasonable judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Representatives Underwriters shall have received on the Closing Date a certificate, dated the Closing Date, addressed to the Underwriters Date and signed on behalf of the Company by an the chief executive officer and chief financial officer of the Company, to the effect set forth in Section 6(aclause 4(a) above and to the effect that the representations and warranties of the Company Parties contained in this Agreement are true and correct in all material respects as of the Closing Date and that the Company Parties have 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 under this Agreement on or before the Closing Date. The officer officers signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Representatives Underwriters shall have received on the Closing Date an opinion of Xxxxxxxx Xxxxxxx & Xxxxx Citron LLP, outside counsel for the Company, dated the Closing Date and addressed to the UnderwritersDate, in form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as Exhibit C.
(d) The Representatives shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxx L.L.P., counsel for the Underwriters, dated the Closing Date and addressed reasonably acceptable to the Underwriters, in form and substance reasonably satisfactory to the RepresentativesUnderwriter Representative. With respect to Sections 6(c) and 6(d) abovesuch opinion, Xxxxxxxx Xxxxxxx & Xxxxx Citron LLP and Xxxxxx & Xxxxxx L.L.P. may state state, among other things, that their opinions and its beliefs are based upon their its 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 Xxxxxxxx & Xxxxx LLP described in Section 6(c) above shall be rendered to the Underwriters at the request of the Company Parties and shall so state therein.
(ed) The Representatives Underwriters shall have received from Deloitte a “comfort letter” (the “initial comfort letter”) dated as received, on each of the date hereof of this Agreement and addressed to the Underwriters, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the most recent Time of Sale Prospectus, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(f) The Representatives shall have received from Deloitte a “bring-down comfort letter” (the “bring-down comfort letter”) dated as of the Closing Date or the Option Closing Date, as the case may be, and addressed to the Underwriters, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the Closing Date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than three days prior to letter dated the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter, and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(g) The Representatives shall have received from Von Gonten a letter (the “Initial Expert Letter”), dated as of the date hereof, in form and substance satisfactory to the Representatives, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offerings.
(h) The Representatives shall have received from Von Gonten a subsequent letter, dated as of the Closing Date this Agreement or the Option Closing Date, as the case may be, in form and substance reasonably satisfactory to the RepresentativesUnderwriters, which such from Xxxxxx LLP, independent registered public accounting firms, each 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, Time of Sale Prospectus and Prospectus; provided that the letter shall cover the period from the Initial Expert Letter to delivered on the Closing Date or shall use a “cut-off date” not earlier than the Option Closing Date, as the case may be, stating the conclusions and findings date of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offeringsthis Agreement.
(ie) The “lock-up” agreements, each substantially in the form of Exhibit A heretoto this Agreement, between the Representatives Underwriters and those certain stockholdersholders of equity securities and instruments exercisable or convertible for equity securities, executive officers and directors of the Company named in Schedule IV hereto relating to sales and certain other dispositions of shares of stock of the Company Common Stock or certain other securities, delivered to the Representatives Underwriters on or before the date hereofof this Agreement, shall be in full force and effect on the Closing Date.
(jf) The Operative Agreements chief financial officer of the Company shall have been executed and delivered by to the Company Entities party thereto and shall be Underwriters on the date of this Agreement a certificate in full force and effect on such date.
(k) a form reasonably acceptable to the Underwriter Representative. The several obligations of the Underwriters to purchase Additional Option Shares hereunder are subject to the delivery to the Representatives Underwriters on the applicable Option Shares 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 Xxxxxxxx & Xxxxx 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 & Xxxxxx L.L.P., 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(d) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Deloitte, 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 three business days prior to such Option Closing Date;
(v) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Von Gonten, independent reserves engineers, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(h) hereof; and
(vi) such other documents as the Representatives Underwriter Representative may reasonably request with respect to the good standing of the Company EntitiesCompany, the due authorization and issuance of the Additional Option Shares to be sold on such Option Closing Date and other matters related to the issuance of such Additional Option Shares.
Appears in 1 contract
Samples: Underwriting Agreement (Sysorex Global Holdings 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 the Registration Statement shall have become effective not later than [●] [a.m./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 the Company Entities its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined in for purposes of Section 3(a)(62) 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 Entitiesand 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 the Representatives’ judgmentjudgment of the Representative, is material and adverse and that makes it, in the Representatives’ judgmentjudgment of the Representative, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus; and
(iii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the business or operations of the Adviser from that set forth in the Time of Sale Prospectus as of the date of this Agreement that, in the judgment of the Representative, is material and adverse and that makes it, in the judgment of the Representative, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(bi) The Representatives Underwriters shall have received on the Closing Date a certificate, dated the Closing Date, addressed to the Underwriters Date and signed by an executive officer of the Company, to in the effect set forth in Section 6(aform attached as Exhibit C hereto.
(i) above The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Adviser, to the effect that the representations and warranties of the Company Parties Adviser contained in this Agreement are true and correct as of the Closing Date and that the Company Parties have Adviser 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 certificates may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Representatives Underwriters shall have received on the Closing Date Date:
(i) an opinion and negative assurance letter of Xxxxxxxx & Xxxxx Dechert LLP, outside counsel for the Company, dated the Closing Date and addressed Date, to the Underwriters, effect set forth in form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as Exhibit C.A hereto; and
(dii) The Representatives shall have received on the Closing Date an opinion and negative assurance letter of Xxxxxx Ropes & Xxxxxx L.L.P.Xxxx LLP, counsel for the Underwriters, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives. With respect to Sections 6(c) and 6(d) above, Xxxxxxxx & Xxxxx LLP and Xxxxxx & Xxxxxx L.L.P. 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 specifiedDate. The opinion of Xxxxxxxx & Xxxxx Dechert LLP described in Section 6(cclause (c)(i) above shall be rendered to the Underwriters at the request of the Company Parties and shall so state therein.
(ed) The Representatives Underwriters shall have received from Deloitte a “comfort letter” (the “initial comfort letter”) dated as received, on each of the date hereof and addressed to the UnderwritersClosing Date, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of a letter dated the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the most recent Time of Sale Prospectus, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(f) The Representatives shall have received from Deloitte a “bring-down comfort letter” (the “bring-down comfort letter”) dated as of the Closing Date or the Option Closing Date, as the case may be, and addressed to the Underwriters, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the Closing Date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter, and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(g) The Representatives shall have received from Von Gonten a letter (the “Initial Expert Letter”), dated as of the date hereof, in form and substance satisfactory to the Representatives, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offerings.
(h) The Representatives shall have received from Von Gonten a subsequent letter, dated as of the Closing Date or the Option Closing Date, as the case may be, in form and substance satisfactory to the RepresentativesUnderwriters, which such from RSM US LLP, independent public accountants 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 included or incorporated by reference in the Registration Statement, the Time of Sale Prospectus and the Prospectus; provided that the letter shall cover the period from the Initial Expert Letter to delivered on the Closing Date or shall use a “cut-off date” not earlier than the Option Closing Date, as the case may be, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offeringsdate hereof.
(ie) The “lock-up” agreements, each substantially in the form of Exhibit A B hereto, between the Representatives Underwriters and those certain stockholders, officers and directors of the Company named in Schedule IV hereto relating to sales and certain other dispositions of shares of stock of the Company Common Stock or certain other securities, delivered to the Representatives Underwriters on or before the date hereof, shall be in full force and effect on the Closing Date.
(jf) The Operative Agreements Underwriters shall have been executed and delivered by received on the date hereof a letter dated the date hereof of the Chief Financial Officer of the Company Entities party thereto and shall be in full force and effect on such date.
(k) substantially the form of Exhibit C hereto. The several obligations of the Underwriters to purchase Additional Shares hereunder are subject to the delivery to the Representatives Underwriters on the applicable Option Closing Date of the following:
(i) a certificate, dated the Option Closing Date and signed by an executive officer of the Company, 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 Xxxxxxxx & Xxxxx 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 & Xxxxxx L.L.P., 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(d) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Deloitte, 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 three business days prior to such Option Closing Date;
(v) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Von Gonten, independent reserves engineers, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(h) hereof; and
(vi) such other documents as the Representatives Representative may reasonably request with respect to the good standing of the Company EntitiesCompany, the due authorization and issuance of the Additional Shares to be sold on such Option Closing Date Date, the legal opinions and certificates set forth above, and other matters related to the issuance of such Additional Shares.
Appears in 1 contract
Samples: Underwriting Agreement (Horizon Technology Finance 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 the Registration Statement shall have become effective not later than [●] [a.m./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 the Company Entities its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined in for purposes of Section 3(a)(62) 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 Entitiesand 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 the judgment of the Representatives’ judgment, is material and adverse and that makes it, in the judgment of the Representatives’ judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus; and
(iii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the business or operations of the Adviser from that set forth in the Time of Sale Prospectus as of the date of this Agreement that, in the judgment of the Representatives, is material and adverse and that makes it, in the judgment of the Representatives, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(bi) The Representatives Underwriters shall have received on the Closing Date a certificate, dated the Closing Date, addressed to the Underwriters Date and signed by an executive officer of the Company, to in the effect set forth in Section 6(aform attached as Exhibit E hereto.
(ii) above The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Adviser, to the effect that the representations and warranties of the Company Parties Adviser contained in this Agreement are true and correct as of the Closing Date and that the Company Parties have Adviser 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 certificates may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Representatives Underwriters shall have received on the Closing Date Date:
(i) an opinion of Xxxxxxxx & Xxxxx Dechert LLP, outside counsel for the Company, dated the Closing Date and addressed Date, to the Underwriters, effect set forth in form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as Exhibit C.A hereto;
(dii) The Representatives shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxx L.L.P.Mxxxxxxx Cxxxx LLP, counsel for the Selling Shareholder, dated the Closing Date, to the effect set forth in Exhibit B-1 hereto, and an opinion of MJM Limited, special Bermuda counsel for the Selling Shareholder, dated the Closing Date, to the effect set forth in Exhibit B-2 hereto; and
(iii) an opinion of Freshfields Bruckhaus Dxxxxxxx US LLP, counsel for the Underwriters, dated the Closing Date Date. With respect to clause 7(c)(ii) above, Mxxxxxxx Cxxxx LLP may rely upon an opinion or opinions of other counsel for the Selling Shareholder and, with respect to factual matters and addressed to the extent such counsel deems appropriate, upon the representations of the Selling Shareholder contained herein and in other documents and instruments; provided that (A) each such counsel for the Selling Shareholder is satisfactory to counsel for the Underwriters, (B) a copy of each opinion so relied upon is delivered to the Underwriters and is in form and substance reasonably satisfactory to counsel for the RepresentativesUnderwriters, (C) copies of any such other documents and instruments shall be delivered to the Underwriters and shall be in form and substance satisfactory to counsel for the Underwriters and (D) Mxxxxxxx Cxxxx LLP shall state in their opinion that they are justified in relying on each such other opinion. With respect to Sections 6(cThe opinions of Dechert LLP, Mxxxxxxx Cxxxx LLP and MJM Limited described in clauses (c)(i) and 6(d(c)(ii) above, Xxxxxxxx & Xxxxx LLP above (and Xxxxxx & Xxxxxx L.L.P. may state that their any opinions and beliefs are based upon their participation of counsel for the Selling Shareholder referred to 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 Xxxxxxxx & Xxxxx LLP described in Section 6(cimmediately preceding paragraph) above shall be rendered to the Underwriters at the request of the Company Parties and shall so state therein.
(ed) The Representatives Underwriters shall have received from Deloitte a “comfort letter” (the “initial comfort letter”) dated as received, on each of the date hereof and addressed to the UnderwritersClosing Date, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of a letter dated the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the most recent Time of Sale Prospectus, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(f) The Representatives shall have received from Deloitte a “bring-down comfort letter” (the “bring-down comfort letter”) dated as of the Closing Date or the Option Closing Date, as the case may be, and addressed to the Underwriters, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the Closing Date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter, and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(g) The Representatives shall have received from Von Gonten a letter (the “Initial Expert Letter”), dated as of the date hereof, in form and substance satisfactory to the Representatives, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offerings.
(h) The Representatives shall have received from Von Gonten a subsequent letter, dated as of the Closing Date or the Option Closing Date, as the case may be, in form and substance satisfactory to the RepresentativesUnderwriters, which such from McGladrey 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 shall cover the period from the Initial Expert Letter to delivered on the Closing Date or shall use a “cut-off date” not earlier than the Option Closing Date, as the case may be, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offeringsdate hereof.
(ie) The “lock-up” agreements, each substantially in the form of Exhibit A D hereto, between the Representatives Underwriters and those certain stockholders, officers and directors of the Company named in Schedule IV hereto relating to sales and certain other dispositions of shares of stock of the Company Common Stock or certain other securities, delivered to the Representatives Underwriters on or before the date hereof, shall be in full force and effect on the Closing Date.
(jf) The Operative Agreements Custody Agreement of the Selling Shareholder shall have been duly authorized, executed and delivered by the Company Entities party thereto Selling Shareholder and shall be in full force is a binding and effect on such date.
(k) valid agreement of the Selling Shareholder. The several obligations of the Underwriters to purchase Additional Shares hereunder are subject to the delivery to the Representatives Underwriters on the applicable Option Closing Date of the following:
(i) a certificate, dated the Option Closing Date and signed by an executive officer of the Company, 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 Xxxxxxxx & Xxxxx 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 & Xxxxxx L.L.P., 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(d) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Deloitte, 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 three business days prior to such Option Closing Date;
(v) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Von Gonten, independent reserves engineers, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(h) hereof; and
(vi) such other documents as the Representatives may reasonably request with respect to the good standing of the Company EntitiesCompany, 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 Additional Shares.
Appears in 1 contract
Samples: Underwriting Agreement (Horizon Technology Finance 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 the Registration Statement shall have become effective not later than [●] [a.m./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 the Company Entities its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) 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 Entitiesand its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus that, in the judgment of the Representatives’ judgment, is material and adverse and that makes it, in the judgment of the Representatives’ judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Representatives Underwriters shall have received on the Closing Date a certificate, dated the Closing Date, addressed to the Underwriters Date and signed on behalf of the Company by an executive officer of the Company, to the effect set forth in Section 6(a5(a)(i) above and to the effect that the representations and warranties of the Company Parties contained in this Agreement are true and correct as of the Closing Date and that the Company Parties have 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 Representatives Underwriters shall have received on the Closing Date an opinion of Xxxxxxxx Fenwick & Xxxxx West LLP, outside counsel for the Company, dated the Closing Date and addressed to the UnderwritersDate, in form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as Exhibit C..
(d) The Representatives Underwriters shall have received on the Closing Date (i) an opinion and (ii) a negative assurance letter of Xxxxxxxxx Xxxxxxx Xxxxxx Xxxxxxxxxx Xxxxxxxx & Xxxxxx L.L.P.Xxxxxxxxx, LLP, counsel for the Underwriters, dated the Closing Date and addressed to the UnderwritersDate, in form and substance reasonably satisfactory to the Representatives. With respect to Sections 6(c) and 6(dSection 5(c) above, Fenwick & West LLP, and with respect to Section 5(d) above, Xxxxxxxxx Xxxxxxx Xxxxxx Xxxxxxxxxx Xxxxxxxx & Xxxxx LLP and Xxxxxx & Xxxxxx L.L.P. Xxxxxxxxx, 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 Xxxxxxxx Fenwick & Xxxxx West LLP described in Section 6(c5(c)) above shall be rendered to the Underwriters at the request of the Company Parties and shall so state thereinCompany.
(e) The Representatives Underwriters shall have received from Deloitte a “comfort letter” (the “initial comfort letter”) dated as received, on each of the date hereof and addressed to the UnderwritersClosing Date, (i) a letter dated the date hereof or the Closing Date in form and substance satisfactory to the Representatives, (i) confirming that they are from Ernst & Young LLP , independent public accountants within the meaning accountants, containing statements and information of the Securities Act and are type ordinarily included in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the most recent Time of Sale Prospectus, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in connection with registered public offeringsthe 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, and (ii) a certificate, in form and substance reasonably satisfactory to the Representatives, signed by the Chief Financial Officer of the Company.
(f) The Representatives shall have received from Deloitte a “bring-down comfort letter” (the “bring-down comfort letter”) dated as of the Closing Date or the Option Closing Date, as the case may be, and addressed to the Underwriters, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the Closing Date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter, and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(g) The Representatives shall have received from Von Gonten a letter (the “Initial Expert Letter”), dated as of the date hereof, in form and substance satisfactory to the Representatives, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offerings.
(h) The Representatives shall have received from Von Gonten a subsequent letter, dated as of the Closing Date or the Option Closing Date, as the case may be, in form and substance satisfactory to the Representatives, which such letter shall cover the period from the Initial Expert Letter to the Closing Date or the Option Closing Date, as the case may be, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offerings.
(i) The “lock-uplock‑up” agreements, each substantially in the form of Exhibit A hereto, between the Representatives Xxxxxx Xxxxxxx, and those certain stockholdersholders of equity securities and instruments exercisable or convertible for equity securities, officers and directors of the Company named in Schedule IV hereto relating to sales and certain other dispositions of shares of stock of the Company Common Stock or certain other securities, delivered to the Representatives on or before the date hereof, shall be in full force and effect on the Closing Date.
(j) The Operative Agreements shall have been executed and delivered by the Company Entities party thereto and shall be in full force and effect on such date.
(kg) The several obligations of the Underwriters to purchase Additional Shares hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate, dated the Option Closing Date and signed on behalf of the Company by an executive officer of the Company, confirming that the certificate delivered on the Closing Date pursuant to Section 6(b5(b) hereof remains true and correct as of such Option Closing Date;
(ii) an opinion of Xxxxxxxx Fenwick & Xxxxx West 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(c5(b) hereof;
(iii) an (A) opinion of Xxxxxxxxx Xxxxxxx Xxxxxx Xxxxxxxxxx Xxxxxxxx & Xxxxxx L.L.P.Xxxxxxxxx, 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(d5(d) hereof, and (B) a negative assurance letter to the same effect as the opinion required by Section 5(d) hereof;
(iv) a (A) letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from DeloitteErnst & Young LLP, independent public accountants, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(f5(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;
Date and (vB) a letter dated the Option Closing Datecertificate, in form and substance reasonably satisfactory to the Representatives, from Von Gonten, independent reserves engineers, substantially in signed by the same form and substance as Chief Financial Officer of the letter furnished to the Underwriters pursuant to Section 6(h) hereofCompany; and
(viv) such other documents as the Representatives may reasonably request with respect to the good standing of the Company EntitiesCompany, 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 Additional Shares.
Appears in 1 contract
Conditions to the Underwriters’ Obligations. The obligations of the Company to sell the Shares to the Underwriters and the several obligations of the Underwriters to purchase and pay for the Shares on the Closing Date are subject to the condition that the Registration Statement shall have become effective not later than [●] [a.m./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 the Company Entities its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) 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 Entitiesand its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus that, in the Representatives’ your judgment, is material and adverse and that makes it, in the Representatives’ your judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Representatives shall have received on the Closing Date a certificate, dated the Closing Date, addressed to the Underwriters Date and signed by an executive officer of the Company, to the effect set forth in Section 6(a5(a)(i) above and to the effect that the representations and warranties of the Company Parties contained in this Agreement are true and correct as of the Closing Date and that the Company Parties have 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 Representatives shall have received on the Closing Date an opinion of Xxxxxxxx & Xxxxx Xxxxxx LLP, outside counsel for the Company, dated the Closing Date and addressed to the UnderwritersDate, in form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as Exhibit C..
(d) The Representatives shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxx L.L.P.Xxxxxxxx, Irish counsel for the UnderwritersCompany, dated the Closing Date and addressed to the UnderwritersDate, in form and substance reasonably satisfactory to the Representatives. With respect to Sections 6(c) and 6(d) above, Xxxxxxxx & Xxxxx LLP and Xxxxxx & Xxxxxx L.L.P. 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 Xxxxxxxx & Xxxxx LLP described in Section 6(c) above shall be rendered to the Underwriters at the request of the Company Parties and shall so state therein.
(e) The Representatives shall have received from Deloitte a “comfort letter” (on the “initial comfort letter”) dated as Closing Date an opinion of the date hereof and addressed to Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, dated the Closing Date, in form and substance satisfactory to the Representatives, . The opinion of counsel for the Company described in Section 5(c) and (id) confirming that they are independent public accountants within above shall be rendered to the meaning Representatives at the request of the Securities Act Company and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the most recent Time of Sale Prospectus, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offeringsmay so state therein.
(f) The Representatives Underwriters shall have received from Deloitte a “bring-down comfort letter” (the “bring-down comfort letter”) dated as received, on each of the Closing Date or date hereof and the Option Closing Date, as the case may be, and addressed to the Underwriters, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the Closing Date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than three days prior to letter dated the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter, and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(g) The Representatives shall have received from Von Gonten a letter (the “Initial Expert Letter”), dated as of the date hereof, in form and substance satisfactory to the Representatives, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offerings.
(h) The Representatives shall have received from Von Gonten a subsequent letter, dated as of the Closing Date hereof or the Option Closing Date, as the case may be, in form and substance satisfactory to the Representatives, which such letter shall cover from PricewaterhouseCoopers LLP, independent public accountants, containing statements and information of the period from the Initial Expert Letter type ordinarily included in accountants’ “comfort letters” to the Closing Date or the Option Closing Date, as the case may be, stating the conclusions and findings of such firm underwriters with respect to reserve the financial statements and other operational certain financial information contained or incorporated by reference in the Registration Statement, the Time of Sale Prospectus and other matters as is customary to underwriters in connection with registered public offeringsthe Prospectus.
(ig) The “lock-up” agreements, each substantially in the form of Exhibit A hereto, between you and the Representatives and those certain stockholders, officers and directors of the Company named in Schedule IV persons listed on Exhibit B hereto relating to sales and certain other dispositions of shares of stock of the Company Ordinary Shares or certain other securities, delivered to the Representatives you on or before the date hereof, shall be in full force and effect on the Closing Date.
(j) The Operative Agreements shall have been executed and delivered by the Company Entities party thereto and shall be in full force and effect on such date.
(kh) The several obligations of the Underwriters to purchase Additional Shares hereunder are subject to the delivery to the Representatives 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(b5(b) hereof remains true and correct as of such Option Closing Date;
(ii) an opinion of Xxxxxxxx & Xxxxx 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(c5(c) hereof;
(iii) an opinion of Xxxxxx Xxxxxxxx, Irish counsel for the Company, dated the Option Closing Date, relating to the Additional Shares to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 5(d) hereof;
(iv) an opinion of Xxxxx Xxxx & Xxxxxx L.L.P.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 6(d5(e) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Deloitte, 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 three business days prior to such Option Closing Date;
(v) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Von GontenPricewaterhouseCoopers LLP, independent reserves engineerspublic accountants, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(h5(f) hereof; provided that the letter delivered on the Option Closing Date from PricewaterhouseCoopers LLP shall use a “cut-off date” not earlier than three business days prior to such Option Closing Date; and
(vi) such other documents as the Representatives you may reasonably request with respect to the good standing of the Company EntitiesCompany, 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 Additional Shares.
Appears in 1 contract
Conditions to the Underwriters’ Obligations. The obligations of the Company to sell the Shares to the Underwriters and the several obligations of the Underwriters to purchase and pay for the Shares on the Closing Date are subject to the condition that the Registration Statement shall have become effective not later than [●] [a.m./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 Company's securities of any of the Company Entities by any “"nationally recognized statistical rating organization,” " as such term is defined in Section 3(a)(62for purposes of Rule 436(g)(2) of 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 Entitiesand its subsidiaries, taken as a whole, from that set forth in the Time Prospectus (exclusive of Sale Prospectus any amendments or supplements thereto subsequent to the date of this Agreement) that, in the Representatives’ your judgment, is material and adverse and that makes it, in the Representatives’ your judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Representatives Underwriters shall have received on the Closing Date a certificate, dated the Closing Date, addressed to the Underwriters Date and signed by an executive officer any of (i) Stevx Xxxxxx, President and Chief Executive Officer of the Company, (ii) Jamex Xxxxxxxx, Senior Vice President and Chief Operating Officer of the Company or (iii) Darix Xxxxxxxx, Xxnior Vice President and Chief Financial Officer of the Company, to the effect set forth in Section 6(a5(a)(i) above and to the effect that the representations and warranties of the Company Parties contained in this Agreement are true and correct as of the Closing Date and that the Company Parties have 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 Representatives Underwriters shall have received on the Closing Date from Georxx X. Xxxx, Xxneral Counsel of the Company, dated the Closing Date, an opinion in a form reasonably acceptable to you.
(d) The Underwriters shall have received on the Closing Date from Cleary, Gottlieb, Steex & Xamixxxx, xxecial counsel to the Company, dated the Closing Date, an opinion and a letter in forms reasonably acceptable to you.
(e) The Underwriters shall have received on the Closing Date an opinion of Xxxxxxxx Cravath, Swaine & Xxxxx LLPMoorx, outside counsel for the Company, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as Exhibit C.
(d) The Representatives shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxx L.L.P., counsel xxunsel for the Underwriters, dated the Closing Date Date, covering the matters referred to in paragraphs (g) and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives(m) of Annex A hereto. With respect to Sections 6(cparagraph (m) and 6(d) aboveof Annex A hereto, Xxxxxxxx Cravath, Swaine & Xxxxx LLP and Xxxxxx & Xxxxxx L.L.P. may Moorx xxx state that their opinions opinion and beliefs belief are based upon their participation in the preparation of the Registration Statement, the Time of Sale Prospectus Statement 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 Xxxxxxxx & Xxxxx LLP described in Section 6(c) above shall be rendered to the Underwriters at the request of the Company Parties and shall so state therein.
(e) The Representatives shall have received from Deloitte a “comfort letter” (the “initial comfort letter”) dated as of the date hereof and addressed to the Underwriters, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the most recent Time of Sale Prospectus, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(f) The Representatives Underwriters shall have received from Deloitte a “bring-down comfort letter” (the “bring-down comfort letter”) dated as received, on each of the Closing Date or date hereof and the Option Closing Date, as the case may be, and addressed to the Underwriters, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the Closing Date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than three days prior to letter dated the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter, and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(g) The Representatives shall have received from Von Gonten a letter (the “Initial Expert Letter”), dated as of the date hereof, in form and substance satisfactory to the Representatives, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offerings.
(h) The Representatives shall have received from Von Gonten a subsequent letter, dated as of the Closing Date hereof or the Option Closing Date, as the case may be, in form and substance satisfactory to the RepresentativesUnderwriters, which such from PWC and KPMG, 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 and the Prospectus; provided that the letter shall cover the period from the Initial Expert Letter to delivered on the Closing Date or shall use a "cut-off date" not earlier than the Option Closing Date, as the case may be, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offeringsdate hereof.
(ig) The “"lock-up” " agreements, each substantially in the form of Exhibit A hereto, between you and TPG Advisors II, Inc., Motorola Inc. and the Representatives directors and those certain stockholders, executive officers and directors of the Company named in Schedule IV hereto relating to sales and certain other dispositions of shares of stock of the Company Common Stock or certain other securities, delivered to the Representatives you on or before the date hereof, shall be in full force and effect on the Closing Date.
(j) The Operative Agreements shall have been executed and delivered by the Company Entities party thereto and shall be in full force and effect on such date.
(k) . The several obligations of the Underwriters to purchase Additional Shares hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate, dated the Option Closing Date and signed by an executive officer of the Company, confirming that the certificate delivered on the Closing Date pursuant to Section 6(b) hereof remains true and correct as of such Option Closing Date;
(ii) an opinion of Xxxxxxxx & Xxxxx 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 & Xxxxxx L.L.P., 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(d) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Deloitte, 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 you on the Option Closing Date shall use a “cut-off date” not earlier than three business days prior to of such Option Closing Date;
(v) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Von Gonten, independent reserves engineers, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(h) hereof; and
(vi) such other documents as the Representatives you may reasonably request with respect to the good standing of the Company EntitiesCompany, 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 the Additional Shares.
Appears in 1 contract
Conditions to the Underwriters’ Obligations. The several obligations of the Company 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 [●] [a.m./p.m.] 5:00 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) no order suspending the effectiveness of the Registration Statement shall be in effect, and no proceeding for such purpose or pursuant to Section 8A of 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 the Company Entities its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of 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 Entitiesand its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus that, in the Representatives’ judgment, is material and adverse and that makes it, in the Representatives’ judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Representatives Underwriters shall have received on the Closing Date a certificate, dated the Closing Date, addressed to the Underwriters Date and signed by an executive officer of the Company, to the effect set forth in Section 6(aSections 6(a)(i) and 6(a)(ii) above and to the effect that the representations and warranties of the Company Parties contained in this Agreement are true and correct in all material respects as of the Closing Date and that the Company Parties have 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 Representatives Underwriters shall have received on the Closing Date an opinion and a negative assurance letter of Xxxxxxxx Xxxxxx & Xxxxx Xxxxxxx LLP, outside counsel for the Company, dated the Closing Date and addressed to the UnderwritersDate, in each case in form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as Exhibit C..
(d) The Representatives Underwriters shall have received on the Closing Date an opinion of Xxxxxx Ropes & Xxxxxx L.L.P.Gray LLP, outside counsel for the Selling Shareholders, and an opinion of Xxxxxxx Xxxxx LLP, outside counsel for Partners Group Access 83 PF LP, each dated the Closing Date, in each case in form and substance reasonably satisfactory to the Representatives.
(e) The Underwriters shall have received on the Closing Date an opinion and a negative assurance letter of Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, dated the Closing Date and addressed to the UnderwritersDate, in each case in form and substance reasonably satisfactory to the Representatives. With respect to Sections 6(c) and 6(d) above, Xxxxxxxx & Xxxxx LLP and Xxxxxx & Xxxxxx L.L.P. 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 Xxxxxxxx & Xxxxx LLP described in Section 6(c) above shall be rendered to the Underwriters at the request of the Company Parties and shall so state therein.
(e) The Representatives shall have received from Deloitte a “comfort letter” (the “initial comfort letter”) dated as of the date hereof and addressed to the Underwriters, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the most recent Time of Sale Prospectus, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(f) The Representatives Underwriters shall have received from Deloitte a “bring-down comfort letter” (the “bring-down comfort letter”) dated as received, on each of the Closing Date or date hereof and the Option Closing Date, as the case may be, and addressed to the Underwriters, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the Closing Date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than three days prior to letter dated the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter, and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(g) The Representatives shall have received from Von Gonten a letter (the “Initial Expert Letter”), dated as of the date hereof, in form and substance satisfactory to the Representatives, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offerings.
(h) The Representatives shall have received from Von Gonten a subsequent letter, dated as of the Closing Date hereof or the Option Closing Date, as the case may be, in form and substance satisfactory to the Representatives, which such 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 or incorporated by reference in the Registration Statement, the Time of Sale Prospectus and the Prospectus; provided that the letter shall cover the period from the Initial Expert Letter to 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 Option Closing Date, as the case may be, stating and signed by the conclusions and findings chief financial officer of such firm the Company, in his capacity as such, with respect to reserve certain financial and other operational accounting information contained or incorporated by reference in the Registration Statement, the Time of Sale Prospectus and other matters as is customary the Prospectus, in form and substance reasonably satisfactory to underwriters in connection with registered public offeringsthe Representatives.
(ih) The “lockLock-up” agreementsup Agreements, each substantially in the form of Exhibit A hereto, between the Representatives and those certain stockholders, stockholders and all executive officers and directors of the Company named in Schedule IV hereto relating to restrictions on sales and certain other dispositions of shares of stock of the Company Common Stock or certain other securities, delivered to the Representatives on or before the date hereof, shall be in full force and effect on the Closing Date.
(j) The Operative Agreements shall have been executed and delivered by the Company Entities party thereto and shall be in full force and effect on such date.
(ki) The several obligations of the Underwriters to purchase Additional Shares hereunder are subject to the delivery to 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 a negative assurance letter of Xxxxxxxx Xxxxxx & Xxxxx 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 6(c) hereof;
(iii) an opinion of Xxxxxx Ropes & Xxxxxx L.L.P.Gray LLP, outside counsel for the UnderwritersSelling Shareholders, and an opinion of Xxxxxxx Xxxxx LLP, outside counsel for Partners Group Access 83 PF LP, 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 opinion required by Section 6(d) hereof;
(iv) an opinion and a negative assurance letter 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 and negative assurance letter required by Section 6(e) hereof;
(v) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from DeloitteDeloitte & 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 three two business days prior to such Option Closing Date;
(vvi) a letter certificate, dated the Option Closing Date, in form Date and substance satisfactory to signed by the Representatives, from Von Gonten, independent reserves engineerschief financial officer of the Company, substantially in the same form and substance as the letter furnished certificate delivered to the Underwriters pursuant to Section 6(h6(g) hereof; and
(vivii) such other documents as the Representatives may reasonably request with respect to the good standing of the Company EntitiesCompany, 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 Additional Shares.
Appears in 1 contract
Samples: Underwriting Agreement (Life Time Group 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 [●] [a.m./p.m.] October (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 downgradingdowngrading to below investment grade, 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, to below investment grade in the rating accorded any of the securities of the Company or any of the Company Entities its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62for purposes of Rule 436(g)(2) of 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 Entitiesand its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus that, in the Representatives’ your judgment, is material and adverse and that makes it, in the Representatives’ your judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Representatives Underwriters shall have received on the Closing Date a certificate, dated the Closing Date, addressed to the Underwriters Date and signed by an executive officer of the Company, in his or her capacity as an officer of the Company and not his or her individual capacity, to the effect set forth in Section 6(a5(a)(i) above and to the effect that the representations and warranties of the Company Parties contained in this Agreement are true and correct as of the Closing Date and that the Company Parties have 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 Representatives Underwriters shall have received on the Closing Date an opinion of Xxxxxxxx & Xxxxx Xxxxxx Xxxxxx LLP, outside counsel for the Company, dated the Closing Date and addressed to the UnderwritersDate, in form and substance reasonably satisfactory to the RepresentativesUnderwriters, substantially to the effect set forth in Annex A hereto. In rendering such opinions, such counsel may rely as to matters of fact, to the form attached hereto as Exhibit C.extent such counsel deems proper, on certificates of responsible officers of the Company and Old SAIC and certificates or other written statements of official jurisdiction having custody of documents respecting the corporate existence or good standing of the Company and Old SAIC.
(d) The Representatives Underwriters shall have received on the Closing Date an opinion of Xxxxxx Xxxxxxx X. Xxxxx, Senior Vice President and General Counsel of the Company, dated the Closing Date, in form and substance reasonably satisfactory to the underwriters, to the effect set forth in Annex B hereto.
(e) The Underwriters shall have received on the Closing Date an opinion of Xxxxx Xxxx & Xxxxxx L.L.P.Xxxxxxxx, counsel for the Underwriters, dated the Closing Date Date, covering the matters referred to in paragraphs (f), (g) and addressed (i) (but only as to the Underwriters, statements in form and substance reasonably satisfactory to the Representatives. With respect to Sections 6(c) and 6(d) above, Xxxxxxxx & Xxxxx LLP and Xxxxxx & Xxxxxx L.L.P. may state that their opinions and beliefs are based upon their participation in the preparation each of the Registration Statement, the Time of Sale Prospectus and the Prospectus under “Underwriters”) and any amendments or supplements thereto the negative assurance paragraph in Annex A hereto, and review and discussion of the contents thereof, but are without independent check or verification, except as specified. The opinion of Xxxxxxxx & Xxxxx LLP described in Section 6(c) above shall be rendered to the Underwriters at the request of the Company Parties and shall so state therein.
(e) The Representatives such counsel shall have received from Deloitte a “comfort letter” (the “initial comfort letter”) dated such documents and information as of the date hereof and addressed they may reasonably request to the Underwriters, in form and substance satisfactory enable them to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the most recent Time of Sale Prospectus, as of a date not more than three days prior to the date hereof), the conclusions and findings of pass upon such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offeringsmatters.
(f) The Representatives Underwriters shall have received from Deloitte a “bring-down comfort letter” (the “bring-down comfort letter”) dated as received, on each of the Closing Date or date hereof and the Option Closing Date, as the case may be, and addressed to the Underwriters, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the Closing Date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than three days prior to letter dated the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter, and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(g) The Representatives shall have received from Von Gonten a letter (the “Initial Expert Letter”), dated as of the date hereof, in form and substance satisfactory to the Representatives, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offerings.
(h) The Representatives shall have received from Von Gonten a subsequent letter, dated as of the Closing Date hereof or the Option Closing Date, as the case may be, in form and substance satisfactory to the RepresentativesUnderwriters, which such 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 shall cover the period from the Initial Expert Letter to delivered on the Closing Date or shall use a “cut-off date” not earlier than the Option Closing Date, as date that is three days prior to the case may be, stating the conclusions and findings date of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offeringscomfort letter.
(ig) The “lock-up” agreements, each substantially in the form of Exhibit A hereto, between the Representatives you and those certain stockholdersshareholders, officers and directors of the Company named in Schedule IV hereto relating to sales and certain other dispositions of shares of stock of the Company Common Stock or certain other securities, delivered to the Representatives you on or before the date hereof, shall be in full force and effect on the Closing Date.
(jh) The Operative Agreements Merger Sub shall have been executed merged with and delivered by into Old SAIC in the Company Entities party thereto Merger and the Certificate of Merger shall be in full force and effect on such datehave been filed with the Delaware Secretary of State.
(ki) The Company and Old SAIC shall have obtained all consents, authorizations or approvals under any agreement, contract or other instrument binding upon Old SAIC requiring a consent, authorization or approval as a result of the Merger, except such consents, authorizations or approvals the failure to obtain which would not, singly or in the aggregate, have a Material Adverse Effect on the SAIC Enterprise. The several obligations of the Underwriters to purchase Additional Shares hereunder are subject to the delivery to the Representatives 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 Xxxxxxxx & Xxxxx 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 & Xxxxxx L.L.P., 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(d) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Deloitte, 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 three business days prior to such Option Closing Date;
(v) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Von Gonten, independent reserves engineers, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(h) hereof; and
(vi) such other documents as the Representatives you may reasonably request with respect to the good standing of the Company EntitiesCompany, 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 Additional Shares.
Appears in 1 contract
Samples: Underwriting Agreement (SAIC, 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 [●] [a.m./p.m.] 5:00 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) 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 the Company Entities its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of 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 Entitiesand its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus and the Prospectus that, in the judgment of the Representatives’ judgment, is material and adverse and that makes it, in the judgment of the Representatives’ judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus and the Prospectus.
(b) The Representatives Underwriters shall have received on the Closing Date a certificate, dated the Closing Date, addressed to the Underwriters Date and signed by an executive officer of the Company, to the effect set forth in Section 6(aSections 5(a)(i) and 5(a)(ii) above and to the effect that the representations and warranties of the Company Parties contained in this Agreement are true and correct as of the Closing Date and that the Company Parties have 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 Representatives Underwriters shall have received on the Closing Date an opinion and negative assurance letter of Xxxxx Xxxx & Xxxxxxxx & Xxxxx LLP, outside counsel for the Company, dated the Closing Date and addressed to the UnderwritersDate, in form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as Exhibit C..
(d) The Representatives Underwriters shall have received on the Closing Date an opinion and negative assurance letter of Xxxxxx & Xxxxxx L.L.P.LLP, counsel for the Underwriters, dated the Closing Date and addressed to the UnderwritersDate, in form and substance reasonably satisfactory to the RepresentativesUnderwriters. With respect to Sections 6(c5(c) and 6(d(d) above, Xxxxx Xxxx & Xxxxxxxx & Xxxxx LLP and Xxxxxx & Xxxxxx L.L.P. 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 and negative assurance letter of Xxxxx Xxxx & Xxxxxxxx & Xxxxx LLP described in Section 6(c5(c) above shall be rendered to the Underwriters at the request of the Company Parties and shall so state therein.
(e) The Representatives Underwriters shall have received from Deloitte a “comfort letter” (on the “initial comfort letter”) dated as Closing Date an opinion of the date hereof and addressed to Xxxxxxxx & Xxxxxxxx LLP, intellectual property counsel for the Underwriters, dated the Closing Date, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the most recent Time of Sale Prospectus, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offeringsUnderwriters.
(f) The Representatives Underwriters shall have received from Deloitte a “bring-down comfort letter” (the “bring-down comfort letter”) dated as received, on each of the Closing Date or date hereof and the Option Closing Date, as the case may be, and addressed to the Underwriters, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the Closing Date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than three days prior to letter dated the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter, and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(g) The Representatives shall have received from Von Gonten a letter (the “Initial Expert Letter”), dated as of the date hereof, in form and substance satisfactory to the Representatives, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offerings.
(h) The Representatives shall have received from Von Gonten a subsequent letter, dated as of the Closing Date hereof or the Option Closing Date, as the case may be, in form and substance satisfactory to the RepresentativesUnderwriters, which such 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 contained in the Registration Statement, the Time of Sale Prospectus and the Prospectus; provided that the letter shall cover the period from the Initial Expert Letter to delivered on the Closing Date or shall use a “cut-off date” not earlier than the Option Closing Date, as the case may be, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offeringsdate hereof.
(ig) The “lock-up” agreements, each substantially in the form of Exhibit A hereto, between the Representatives executed by certain securityholders, and those certain stockholders, all officers and directors of the Company named in Schedule IV hereto relating to restrictions on sales and certain other dispositions of shares of stock of the Company Common Stock or certain other securities, delivered to the Representatives on or before the date hereof, shall be in full force and effect on the Closing Date.
(jh) The Operative Agreements Underwriters shall have been executed received on the Closing Date an opinion of Xxxxx Lovells US LLP, regulatory counsel for the Underwriters, dated the Closing Date, in form and delivered by substance satisfactory to the Company Entities party thereto and shall be in full force and effect on such dateUnderwriters.
(ki) The several obligations of the Underwriters to purchase Additional Shares hereunder are subject to the delivery to 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(b5(b) hereof remains true and correct as of such Option Closing Date;
(ii) an opinion and negative assurance letter of Xxxxx Xxxx & Xxxxxxxx & Xxxxx 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(c5(c) hereof;
(iii) an opinion and negative assurance letter of Xxxxxx & Xxxxxx L.L.P.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(d5(d) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the RepresentativesUnderwriters, from DeloitteErnst & Young LLP, independent public accountants, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(f5(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;
(v) a letter an opinion of Xxxxx Lovells US LLP, regulatory counsel for the Underwriters, dated the Option Closing Date, in form and substance satisfactory relating to the Representatives, from Von Gonten, independent reserves engineers, substantially in Additional Shares to be purchased on such Option Closing Date and otherwise to the same form and substance effect as the letter furnished opinion required by Section 5(h) hereof;
(vi) an opinion of Xxxxxxxx & Xxxxxxxx LLP, intellectual property counsel for the Underwriters, dated the Option Closing Date, relating to the Underwriters pursuant Additional Shares to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(h5(e) hereof; and
(vivii) such other documents as the Representatives may reasonably request with respect to the good standing of the Company EntitiesCompany, 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 Additional Shares.
Appears in 1 contract
Conditions to the Underwriters’ Obligations. The obligations of the Company 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 [●] [a.m./p.m.] 5:00 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 the Company Entities its subsidiaries by any “"nationally recognized statistical rating organization,” " as such term is defined in Section 3(a)(62for purposes of Rule 436(g)(2) of 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 Entitiesand its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus that, in the Representatives’ your judgment, is material and adverse and that makes it, in the Representatives’ your judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Representatives Underwriters shall have received on the Closing Date a certificate, dated the Closing Date, addressed to the Underwriters Date and signed by an executive officer of the Company, to the effect set forth in Section 6(a6(a)(i) above and to the effect that the representations and warranties of the Company Parties contained in this Agreement are true and correct as of the Closing Date and that the Company Parties have 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 Representatives shall have received on the Closing Date an opinion of Xxxxxxxx & Xxxxx LLP, outside counsel for the Company, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as Exhibit C.
(d) The Representatives Underwriters shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxx L.L.P., counsel for the Underwriters, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives. With respect to Sections 6(c) and 6(d) above, Xxxxxxx Xxxxxxxx & Xxxxx LLP and Xxxxxx & Xxxxxx L.L.P. may state that their opinions and beliefs are based upon their participation in the preparation of the Registration StatementXxxxxx, 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 Xxxxxxxx & Xxxxx LLP described in Section 6(c) above shall be rendered to the Underwriters at the request of the Company Parties and shall so state therein.
(e) The Representatives shall have received from Deloitte a “comfort letter” (the “initial comfort letter”) dated as of the date hereof and addressed to the Underwriters, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the most recent Time of Sale Prospectus, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(f) The Representatives shall have received from Deloitte a “bring-down comfort letter” (the “bring-down comfort letter”) dated as of the Closing Date or the Option Closing Date, as the case may be, and addressed to the Underwriters, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the Closing Date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter, and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(g) The Representatives shall have received from Von Gonten a letter (the “Initial Expert Letter”), dated as of the date hereof, in form and substance satisfactory to the Representatives, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offerings.
(h) The Representatives shall have received from Von Gonten a subsequent letter, dated as of the Closing Date or the Option Closing Date, as the case may be, in form and substance satisfactory to the Representatives, which such letter shall cover the period from the Initial Expert Letter to the Closing Date or the Option Closing Date, as the case may be, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offerings.
(i) The “lock-up” agreements, each substantially in the form of Exhibit A hereto, between the Representatives and those certain stockholders, officers and directors of the Company named in Schedule IV hereto relating to sales and certain other dispositions of shares of stock of the Company or certain other securities, delivered to the Representatives on or before the date hereof, shall be in full force and effect on the Closing Date.
(j) The Operative Agreements shall have been executed and delivered by the Company Entities party thereto and shall be in full force and effect on such date.
(k) The several obligations of the Underwriters to purchase Additional Shares hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate, dated the Option Closing Date and signed by an executive officer of the Company, confirming that the certificate delivered on the Closing Date pursuant to Section 6(b) hereof remains true and correct as of such Option Closing Date;
(ii) an opinion of Xxxxxxxx & Xxxxx LLPProfessional Corporation, outside counsel for the Company, dated the Option Closing Date, relating to the Additional Shares effect that:
(i) 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 Time of Sale 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 purchased 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 Time of Sale 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 Option Closing Date and otherwise qualification, except to the same 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 the opinion required by Section 6(c) hereofa whole;
(iii) an opinion the authorized capital stock of Xxxxxx & Xxxxxx L.L.P., counsel for the Underwriters, dated the Option Closing Date, relating Company conforms as to legal matters to the Additional Shares to be purchased on such Option Closing Date description thereof contained in the section entitled "Description of Capital Stock" in each of the Time of Sale Prospectus and otherwise to the same effect as the opinion required by Section 6(d) hereofProspectus;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory shares of Common Stock (including the Shares to be sold by the Selling Stockholders) outstanding prior to the Representativesissuance of the Shares to be sold by the Company have been duly authorized and are validly issued, from Deloitte, independent public accountants, substantially in the same form fully paid 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 “cutnon-off date” not earlier than three business days prior to such Option Closing Dateassessable;
(v) a letter dated all of the Option Closing Dateissued shares of capital stock of each subsidiary of the Company have been duly and validly authorized and issued, in form are fully paid and substance satisfactory to non-assessable and are owned directly by the RepresentativesCompany, from Von Gontenfree and clear of all liens, independent reserves engineersencumbrances, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(h) hereof; andequities or claims;
(vi) such other documents as the Representatives may reasonably request with respect to the good standing of the Company Entities, the due authorization and issuance of the Additional Shares to be sold on such Option Closing Date by the Company have been duly authorized and, when issued and other matters related to delivered in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Additional Shares will not be subject to any preemptive or similar rights pursuant to the Company's Certificate of Incorporation or Bylaws, the Delaware General Corporation Law (the "DGCL") or to such counsel's knowledge, pursuant to any contract or agreement;
(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 federal or Washington law or the DGCL 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 filed as an exhibit to the Registration Statement pursuant to Item 601 of Regulation S-K, or to such counsel's knowledge after due inquiry 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 relating to legal matters, documents or proceedings included in (A) the Time of Sale Prospectus and the Prospectus under the captions "Management-Committees of the Board of Directors," "Management-Director Compensation," "Management-Employment Agreements and Change of Control Arrangements," "Management-Employee Benefit Plans," "Management-Limitations on Liability and Indemnification Matters," "Certain Relationships and Related Party Transactions," "Description of Capital Stock," "Shares Eligible For Future Sale" and "Material United States Federal Tax Considerations for Non-United States Holders of Common Stock," (B) the Time of Sale Prospectus and the Prospectus under the caption "Underwriters" and (C) the Registration Statement in Items 14 and 15, in each case fairly summarize in all material respects such matters, documents or proceedings;
Appears in 1 contract
Conditions to the Underwriters’ Obligations. The obligations of the Company to sell the Shares to the Underwriters and the several obligations of the Underwriters to purchase and pay for the Shares on the Closing Date are subject to the condition that the Registration Statement shall have become effective not later than [●] [a.m./p.m.] 5:00 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) 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 the Company Entities its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of 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 Entitiesand its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus and the Prospectus that, in the judgment of the Representatives’ judgment, is material and adverse and that makes it, in the judgment of the Representatives’ judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus and the Prospectus.
(b) The Representatives Underwriters shall have received on the Closing Date a certificate, dated the Closing Date, addressed to the Underwriters Date and signed by an executive officer of the Company, to the effect set forth in Section 6(aSections 5(a)(i) and 5(a)(ii) above and to the effect that the representations and warranties of the Company Parties contained in this Agreement are true and correct as of the Closing Date and that the Company Parties have 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 Representatives Underwriters shall have received on the Closing Date an opinion and negative assurance letter of Xxxxx Xxxx & Xxxxxxxx & Xxxxx LLP, outside counsel for the Company, dated the Closing Date and addressed to the UnderwritersDate, in form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as Exhibit C..
(d) The Representatives Underwriters shall have received on the Closing Date an opinion and negative assurance letter of Xxxxxx & Xxxxxx L.L.P.LLP, counsel for the Underwriters, dated the Closing Date and addressed to the UnderwritersDate, in form and substance reasonably satisfactory to the RepresentativesUnderwriters. With respect to Sections 6(c5(c) and 6(d(d) above, Xxxxx Xxxx & Xxxxxxxx & Xxxxx LLP and Xxxxxx & Xxxxxx L.L.P. 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 and negative assurance letter of Xxxxx Xxxx & Xxxxxxxx & Xxxxx LLP described in Section 6(c5(c) above shall be rendered to the Underwriters at the request of the Company Parties and shall so state therein.
(e) The Representatives Underwriters shall have received from Deloitte a “comfort letter” (on the “initial comfort letter”) dated as Closing Date an opinion of the date hereof and addressed to Xxxxxxxx & Xxxxxxxx LLP, intellectual property counsel for the Underwriters, dated the Closing Date, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the most recent Time of Sale Prospectus, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offeringsUnderwriters.
(f) The Representatives Underwriters shall have received from Deloitte a “bring-down comfort letter” (the “bring-down comfort letter”) dated as received, on each of the Closing Date or date hereof and the Option Closing Date, as the case may be, and addressed to the Underwriters, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the Closing Date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than three days prior to letter dated the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter, and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(g) The Representatives shall have received from Von Gonten a letter (the “Initial Expert Letter”), dated as of the date hereof, in form and substance satisfactory to the Representatives, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offerings.
(h) The Representatives shall have received from Von Gonten a subsequent letter, dated as of the Closing Date hereof or the Option Closing Date, as the case may be, in form and substance satisfactory to the RepresentativesUnderwriters, which such 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 contained in the Registration Statement, the Time of Sale Prospectus and the Prospectus; provided that the letter shall cover the period from the Initial Expert Letter to delivered on the Closing Date or shall use a “cut-off date” not earlier than the Option Closing Date, as the case may be, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offeringsdate hereof.
(ig) The “lock-up” agreements, each substantially in the form of Exhibit A hereto, between the Representatives executed by certain securityholders, and those certain stockholders, all officers and directors of the Company named in Schedule IV hereto relating to restrictions on sales and certain other dispositions of shares of stock of the Company Common Stock or certain other securities, delivered to the Representatives on or before the date hereof, shall be in full force and effect on the Closing Date.
(jh) The Operative Agreements Underwriters shall have been executed received on the Closing Date an opinion of Xxxxx Lovells US LLP, regulatory counsel for the Underwriters, dated the Closing Date, in form and delivered by substance satisfactory to the Company Entities party thereto and shall be in full force and effect on such dateUnderwriters.
(ki) Reserved.
(j) The several obligations of the Underwriters to purchase Additional Shares hereunder are subject to the delivery to 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(b5(b) hereof remains true and correct as of such Option Closing Date;
(ii) an opinion and negative assurance letter of Xxxxx Xxxx & Xxxxxxxx & Xxxxx 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(c5(c) hereof;
(iii) an opinion and negative assurance letter of Xxxxxx & Xxxxxx L.L.P.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(d5(d) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the RepresentativesUnderwriters, from DeloitteErnst & Young LLP, independent public accountants, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(f5(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;
(v) a letter an opinion of Xxxxx Lovells US LLP, regulatory counsel for the Underwriters, dated the Option Closing Date, in form and substance satisfactory relating to the RepresentativesAdditional Shares to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 5(h) hereof;
(vi) an opinion of Xxxxxxxx & Xxxxxxxx LLP, from Von Gontenintellectual property counsel for the Underwriters, independent reserves engineersdated 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;
(vii) [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 6(h5(i) hereof; ;] and
(viviii) such other documents as the Representatives may reasonably request with respect to the good standing of the Company EntitiesCompany, 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 Additional Shares.
Appears in 1 contract
Conditions to the Underwriters’ Obligations. The obligations of the Company Selling Shareholders to sell the Shares to the Underwriters and the several obligations of the Underwriters to purchase and pay for the Firm Shares on the Closing Date are subject to the condition that the Registration Statement shall have become effective not later than [●] [a.m./p.m.] 4:30 p.m. (New York City time) on the date hereof. The several obligations of the Underwriters are subject to the following further conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company, Mxxxxx Sxxxxxx or any of the Company Entities their respective subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62for purposes of Rule 436(g)(2) of 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 Entitiesand 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 the Representatives’ Mxxxxx Sxxxxxx & Co. Incorporated’s judgment, is material and adverse and that makes it, in the Representatives’ Mxxxxx Sxxxxxx & Co. Incorporated’s judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Representatives Underwriters shall have received on the Closing Date Date:
(i) a certificate, dated the Closing Date, addressed to the Underwriters Date and signed by an executive officer of the Company, to the effect set forth in Section 6(a6(a)(i) above and to the effect that the representations and warranties of the Company Parties contained in this Agreement are true and correct as of the Closing Date and that the Company Parties have 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 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 its part to be performed or satisfied hereunder on or before the Closing Date.
(c) The Representatives Underwriters shall have received on the Closing Date opinions, each dated the Closing Date, of Dxxxx Xxxx & Wxxxxxxx, outside counsel for the Company, substantially in the form attached as Exhibits B-1 and B-2 hereto.
(d) The Underwriters shall have received on the Closing Date an opinion, dated the Closing Date, of Fxxxxxxxx X. Xxxxxx, General Counsel of the Company, substantially in the form attached as Exhibit C hereto.
(e) The Underwriters shall have received on the Closing Date an opinion, dated the Closing Date, of Dxxxx Xxxx & Wxxxxxxx, counsel for Mxxxxx Sxxxxxx, substantially in the form attached as Exhibit D hereto.
(f) The Underwriters shall have received on the Closing Date an opinion, dated the Closing Date, of Dxxxx Xxxx & Wxxxxxxx, counsel for The Capital Group Companies Charitable Foundation, a California non-profit public benefit corporation (“Capital Group”), substantially in the form attached as Exhibit E hereto.
(g) The Underwriters shall have received on the Closing Date an opinion or opinions of Cxxxxx Xxxxxxxx Xxxxx & Xxxxx Hxxxxxxx LLP, outside counsel for the Company, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as Exhibit C.
(d) The Representatives shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxx L.L.P., counsel for the Underwriters, dated the Closing Date and addressed to Date, covering such matters as the Underwriters, Underwriters may reasonably request. The opinions described in form and substance reasonably satisfactory to the Representatives. With respect to Sections 6(c), 6(d), 6(e) and 6(d) above, Xxxxxxxx & Xxxxx LLP and Xxxxxx & Xxxxxx L.L.P. 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 Xxxxxxxx & Xxxxx LLP described in Section 6(c6(f) above shall be rendered to the Underwriters at the request of the Company Parties Company, Mxxxxx Sxxxxxx or Capital Group, as the case may be, and shall so state therein.
(eh) The Representatives Underwriters shall have received from Deloitte a “comfort letter” (the “initial comfort letter”) dated as received, on each of the date hereof and addressed to the UnderwritersClosing Date, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of a letter dated the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the most recent Time of Sale Prospectus, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(f) The Representatives shall have received from Deloitte a “bring-down comfort letter” (the “bring-down comfort letter”) dated as of the Closing Date or the Option Closing Date, as the case may be, and addressed to the Underwriters, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the Closing Date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter, and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(g) The Representatives shall have received from Von Gonten a letter (the “Initial Expert Letter”), dated as of the date hereof, in form and substance satisfactory to the Representatives, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offerings.
(h) The Representatives shall have received from Von Gonten a subsequent letter, dated as of the Closing Date or the Option Closing Date, as the case may be, in form and substance satisfactory to the RepresentativesUnderwriters, which such 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 shall cover the period from the Initial Expert Letter to delivered on the Closing Date or shall use a “cut-off date” not earlier than the Option Closing Date, as the case may be, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offeringsdate hereof.
(i) The “lock-up” agreements, each substantially in the form of Exhibit A hereto, between the Representatives you and those certain stockholders, officers each officer and directors director of the Company named in set forth on Schedule IV hereto hereto, relating to sales and certain other dispositions of shares of stock of the Company Common Stock or certain other securities, delivered to the Representatives you on or before the date hereof, shall be in full force and effect on the Closing Date.
(j) The Operative Agreements shall have been executed and delivered by the Company Entities party thereto and shall be in full force and effect on such date.
(k) . The several obligations of the Underwriters to purchase Additional Shares hereunder are subject to the delivery to the Representatives 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 Xxxxxxxx & Xxxxx 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 & Xxxxxx L.L.P., 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(d) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Deloitte, 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 three business days prior to such Option Closing Date;
(v) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Von Gonten, independent reserves engineers, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(h) hereof; and
(vi) such other documents as the Representatives Mxxxxx Sxxxxxx & Co. Incorporated may reasonably request with respect to the good standing of the Company EntitiesCompany, 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 Additional Shares.
Appears in 1 contract
Samples: Underwriting Agreement (MSCI 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 [●] [a.m./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 the Company Entities its subsidiaries by any “"nationally recognized statistical rating organization,” " as such term is defined in Section 3(a)(62for purposes of Rule 436(g)(2) of 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 Entitiesand its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus that, in the Representatives’ your judgment, is material and adverse and that makes it, in the Representatives’ your judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Representatives Underwriters shall have received on the Closing Date a certificate, dated the Closing Date, addressed to the Underwriters Date and signed by an executive officer of the Company, to the effect set forth in Section 6(a5(a)(i) above hereof and to the effect that the representations and warranties of the Company Parties contained in this Agreement are true and correct as of the Closing Date and that the Company Parties have 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 Representatives Underwriters shall have received on the Closing Date an opinion of Xxxxxxxx & Xxxxx Xxxxxxx Procter LLP, outside counsel for the Company, dated the Closing Date and addressed to the UnderwritersDate, in form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as Exhibit C.B hereto.
(d) The Representatives Underwriters shall have received on the Closing Date an opinion of Xxxxxx Xxxxx Xxxx & Xxxxxx L.L.P.Xxxxxxxx, counsel for the Underwriters, dated the Closing Date and addressed Date, covering the matters referred to in Sections [ ] , [ ], [ ] (but only as to the statements in each of the Time of Sale Prospectus and the Prospectus under "Description of Capital Stock" and "Underwriters, in form ") and substance reasonably satisfactory to the Representatives[ ] of Exhibit B hereto. With respect to Sections 6(c) and 6(d) aboveSection [ ] of Exhibit B hereto, Xxxxxxxx & Xxxxx Xxxxxxx Procter LLP and Xxxxxx Xxxxx Xxxx & Xxxxxx L.L.P. Xxxxxxxx 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 Xxxxxxxx & Xxxxx LLP described in Section 6(c) above shall be rendered to the Underwriters at the request of the Company Parties and shall so state therein.
(e) The Representatives Underwriters shall have received from Deloitte a “comfort letter” (the “initial comfort letter”) dated as received, on each of the date hereof and addressed to the UnderwritersClosing Date, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of a letter dated the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the most recent Time of Sale Prospectus, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(f) The Representatives shall have received from Deloitte a “bring-down comfort letter” (the “bring-down comfort letter”) dated as of the Closing Date or the Option Closing Date, as the case may be, and addressed to the Underwriters, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the Closing Date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter, and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(g) The Representatives shall have received from Von Gonten a letter (the “Initial Expert Letter”), dated as of the date hereof, in form and substance satisfactory to the Representatives, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offerings.
(h) The Representatives shall have received from Von Gonten a subsequent letter, dated as of the Closing Date or the Option Closing Date, as the case may be, in form and substance satisfactory to the RepresentativesUnderwriters, which such from each of Ernst & Young LLP and 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 shall cover the period from the Initial Expert Letter to delivered on the Closing Date or shall use a "cut-off date" not earlier than the Option Closing Date, as the case may be, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offeringsdate hereof.
(if) The “"lock-up” " agreements, each substantially in the form of Exhibit A hereto, between the Representatives you and those certain stockholdersshareholders, officers and directors of the Company named in Schedule IV hereto relating to sales and certain other dispositions of shares of stock of the Company Common Stock or certain other securities, delivered to the Representatives you on or before the date hereof, shall be in full force and effect on the Closing Date.
(j) The Operative Agreements shall have been executed and delivered by the Company Entities party thereto and shall be in full force and effect on such date.
(k) . The several obligations of the Underwriters to purchase Additional Shares hereunder are subject to the delivery to the Representatives 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 Xxxxxxxx & Xxxxx 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 & Xxxxxx L.L.P., 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(d) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Deloitte, 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 three business days prior to such Option Closing Date;
(v) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Von Gonten, independent reserves engineers, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(h) hereof; and
(vi) such other documents as the Representatives you may reasonably request with respect to the good standing of the Company EntitiesCompany, 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 Additional Shares.
Appears in 1 contract
Samples: Underwriting Agreement (Optium Corp)
Conditions to the Underwriters’ Obligations. The obligations of the Company 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 [●] [a.m./p.m.] (5:00 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 the Company Entities its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62for purposes of Rule 436(g)(2) of 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 Entitiesand its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus that, in the Representatives’ your judgment, is material and adverse and that makes it, in the Representatives’ your judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Representatives Underwriters shall have received on the Closing Date Date:
(i) a certificate, dated the Closing Date, addressed to the Underwriters Date and signed by an executive officer of the Company, Company to the effect set forth in Section 6(a6(a)(i) above and to the effect that the representations and warranties of the Company Parties contained in this Agreement are true and correct as of the Closing Date and that the Company Parties have 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;
(ii) a certificate, dated the Closing Date and signed by an officer of Ventures, who is authorized by corporate action to provide such certificate, to the effect that the representations and warranties of Ventures contained in this Agreement are true and correct as of the Closing Date and that Ventures 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;
(iii) a certificate, dated the Closing Date and signed by an officer of Parent, who is authorized by corporate action to provide such certificate, to the effect that the representations and warranties of Parent contained in this Agreement are true and correct as of the Closing Date; and
(iv) a certificate, dated the Closing Date and signed by Xxxxxxxxxx X. Xxxxx or Xxxx X. Xxxxxxx, as attorneys to the Selling Shareholders (except Ventures), to the effect that the representations and warranties of the Selling Shareholders (except Ventures) contained in this Agreement are true and correct as of the Closing Date and that the Selling Shareholders have complied with all of the agreements and satisfied all of the conditions on their part to be performed or satisfied hereunder on or before the Closing Date.
(c) The Representatives Underwriters shall have received on the Closing Date an opinion of Xxxxxxxx & Xxxxx LLP, outside counsel for the Company, dated the Closing Date and addressed Date, to the Underwriters, effect set forth in form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as Exhibit C.B.
(d) The Representatives Underwriters shall have received on the Closing Date an opinion of Xxxxxx Xxxxxxxx Xxxxx & Xxxxxx L.L.P.Xxxxxxxx LLP, counsel for the Parent and the Selling Shareholders, dated the Closing Date, to the effect set forth in Exhibit C.
(e) The Underwriters shall have received on the Closing Date an opinion of Xxxxx Xxxx & Xxxxxxxx, counsel for the Underwriters, dated the Closing Date and addressed Date, to the effect that:
(i) this Agreement has been duly authorized, executed and delivered by the Company, the Parent and Ventures;
(ii) the statements relating to legal matters, documents or proceedings included in the Time of Sale Prospectus and the Prospectus under the captions “Description of Capital Stock” (with respect to the Company’s charter and by-laws) and “Underwriters” fairly summarize in all material respects such matters, documents or proceedings; and
(iii) (A) in the opinion of such counsel, the Registration Statement, the Time of Sale Prospectus and the Prospectus (except for the broadly available road show, the financial statements and financial schedules and other financial and statistical data included therein, as to which such counsel need not express any belief) 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) 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 broadly available road show, 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 form the light of the circumstances under which they were made, not misleading or (3) the Prospectus (except for the financial statements and substance reasonably satisfactory 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 RepresentativesClosing 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. With respect to Sections 6(c) and 6(d) aboveSection 6(e)(iii), Xxxxxxxx & Xxxxx LLP and Xxxxxx & Xxxxxx L.L.P. counsel for the Underwriters may state that their opinions opinion and beliefs are belief is 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 opinions of Xxxxxxxx & Xxxxx LLP described in Section and Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP provided pursuant to Sections 6(c) and 6(d) above shall be rendered to the Underwriters at the request of the Company Parties Company, the Parent or the Selling Shareholders, as the case may be, and shall so state therein.
(ef) The Representatives Underwriters shall have received from Deloitte a “comfort letter” (the “initial comfort letter”) dated as received, on each of the date hereof and addressed to the UnderwritersClosing Date, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of a letter dated the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the most recent Time of Sale Prospectus, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(f) The Representatives shall have received from Deloitte a “bring-down comfort letter” (the “bring-down comfort letter”) dated as of the Closing Date or the Option Closing Date, as the case may be, and addressed to the Underwriters, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the Closing Date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter, and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(g) The Representatives shall have received from Von Gonten a letter (the “Initial Expert Letter”), dated as of the date hereof, in form and substance satisfactory to the Representatives, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offerings.
(h) The Representatives shall have received from Von Gonten a subsequent letter, dated as of the Closing Date or the Option Closing Date, as the case may be, in form and substance satisfactory to the RepresentativesUnderwriters, which such from Ernst & Young 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 financial statements and certain financial information contained in the Registration Statement and the Prospectus; provided that the letter shall cover the period from the Initial Expert Letter to delivered on the Closing Date or shall use a “cut-off date” not earlier than the Option Closing Date, as the case may be, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offeringsdate hereof.
(ig) The “lock-up” agreements, each substantially in the form of Exhibit A hereto, between you and the Representatives and those certain stockholdersSelling Shareholders, officers and directors of the Company named in Schedule IV hereto relating to sales and certain other dispositions of shares of stock of the Company Common Stock or certain other securities, delivered to the Representatives you on or before the date hereof, shall be in full force and effect on the Closing Date.
(j) The Operative Agreements shall have been executed and delivered by the Company Entities party thereto and shall be in full force and effect on such date.
(k) . The several obligations of the Underwriters to purchase Additional Shares hereunder are subject to the delivery to the Representatives 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 Xxxxxxxx & Xxxxx 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 & Xxxxxx L.L.P., 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(d) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Deloitte, 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 three business days prior to such Option Closing Date;
(v) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Von Gonten, independent reserves engineers, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(h) hereof; and
(vi) such other documents as the Representatives you may reasonably request with respect to the good standing of the Company EntitiesCompany, 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 Additional Shares.
Appears in 1 contract
Samples: Underwriting Agreement (Chipotle Mexican Grill 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 [●•] [a.m./p.m.a.m.] [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 the Company Entities its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) 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 Entitiesand its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus that, in the Representatives’ your judgment, is material and adverse and that makes it, in the Representatives’ your judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Representatives Underwriters shall have received on the Closing Date a certificate, dated the Closing Date, addressed to the Underwriters Date and signed by an executive officer of the Company, to the effect set forth in Section 6(a5(a)(i) above and to the effect that the representations and warranties of the Company Parties contained in this Agreement are true and correct as of the Closing Date and that the Company Parties have 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 Representatives Underwriters shall have received on the Closing Date an opinion and negative assurance letter of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx & Xxxxx LLP, outside counsel for the Company, dated the Closing Date and addressed to the UnderwritersDate, in form and substance reasonably satisfactory to the Representatives, substantially Representatives to the effect set forth in the form attached hereto as Exhibit C.Annex A.
(d) The Representatives Underwriters shall have received on the Closing Date an opinion and negative assurance letter of Xxxxxx Xxxxxxx Xxxxxxx & Xxxxxx L.L.P.Xxxxxxxx LLP, counsel for the Underwriters, dated the Closing Date and addressed to the UnderwritersDate, in form and substance reasonably satisfactory to the Representatives. With respect to Sections 6(c) and 6(d) above, Xxxxxxxx & Xxxxx LLP and Xxxxxx & Xxxxxx L.L.P. 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 Xxxxxxxx & Xxxxx LLP described in Section 6(c) above shall be rendered to the Underwriters at the request of the Company Parties and shall so state thereinyou.
(e) The Representatives Underwriters shall have received from Deloitte a “comfort letter” (the “initial comfort letter”) dated as received, on each of the date hereof and addressed to the UnderwritersClosing Date, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of a letter dated the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the most recent Time of Sale Prospectus, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(f) The Representatives shall have received from Deloitte a “bring-down comfort letter” (the “bring-down comfort letter”) dated as of the Closing Date or the Option Closing Date, as the case may be, and addressed to the Underwriters, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the Closing Date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter, and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(g) The Representatives shall have received from Von Gonten a letter (the “Initial Expert Letter”), dated as of the date hereof, in form and substance satisfactory to the Representatives, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offerings.
(h) The Representatives shall have received from Von Gonten a subsequent letter, dated as of the Closing Date or the Option Closing Date, as the case may be, in form and substance satisfactory to the RepresentativesUnderwriters, which such from each of PricewaterhouseCoopers LLP, Deloitte & Touche LLP and 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 contained in the Registration Statement, the Time of Sale Prospectus and the Prospectus; provided that any letter shall cover the period from the Initial Expert Letter to delivered on the Closing Date or shall use a “cut-off date” not earlier than the Option date hereof.
(f) The Underwriters shall have received, on the date hereof and on the Closing Date, a certificate of the Chief Financial Officer of the Company, in his capacity as an officer of the case may beCompany and not in his individual capacity, stating the conclusions in form and findings of such firm substance reasonably satisfactory to you, with respect to reserve certain information contained in the Time of Sale Prospectus and other operational information and other matters as is customary to underwriters in connection with registered public offeringsthe Prospectus.
(ig) The “lock-up” agreements, each substantially in the form of Exhibit A hereto, between you and the Representatives and those certain stockholdersshareholders, officers and directors of the Company named in Company, listed on Schedule IV hereto III relating to sales and certain other dispositions of shares of stock of the Company Common Stock or certain other securities, delivered to the Representatives you on or before the date hereof, shall be in full force and effect on the Closing Date.
(j) The Operative Agreements shall have been executed and delivered by the Company Entities party thereto and shall be in full force and effect on such date.
(kh) The several obligations of the Underwriters to purchase Additional Shares hereunder are subject to the delivery to the Representatives 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(b5(b) hereof remains true and correct as of such Option Closing Date;
(ii) an opinion of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx & Xxxxx 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(c5(c) hereof;
(iii) an opinion of Xxxxxx Xxxxxxx Xxxxxxx & Xxxxxx L.L.P.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 6(d5(d) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the RepresentativesUnderwriters, from Deloitteeach of PricewaterhouseCoopers LLP, Deloitte & Touche LLP and Ernst & young LLP, independent public accountants, substantially in the same form and substance as the letter furnished by each to the Underwriters pursuant to Section 6(f5(e) hereof; provided that the any 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;
(v) a letter certificate of the Chief Financial Officer, of the Company, in his capacity as an officer of the Company and not in his individual capacity, dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Von Gonten, independent reserves engineers, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(h6(f) hereof, with respect to certain information contained in the Time of Sale Prospectus and the Prospectus; and
(vi) such other documents as the Representatives you may reasonably request with respect to the good standing of the Company EntitiesCompany, 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 Additional SharesShares as are customary.
Appears in 1 contract
Samples: Underwriting Agreement (ADT, Inc.)
Conditions to the Underwriters’ Obligations. The respective obligations of the Company to sell Fund and the Shares to the Underwriters Advisers and the several obligations of the Underwriters to purchase and pay for the Shares on the Closing Date hereunder are subject to the condition that the Registration Statement shall have become effective not later than [●] [a.m./p.m.] 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:
Date or, if earlier, the dates as of which information is given in the Registration Statement (iexclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), (1) in the case of the Fund, there shall not have occurred (A) any downgradingchange or decrease specified in the letter or letters referred to in paragraph (i) of this Section 6, nor shall or (B) any notice have been given of change, or any intended or potential downgrading or of any review for development involving a possible change that does not indicate the direction of the possible prospective change, in the rating accorded any condition, financial or otherwise, or in the earnings, business, prospects, properties or operations of the securities Fund, whether or not arising from transactions in the ordinary course of any business, from that set forth in the Time of Sale Prospectus and, (2) in the Company Entities by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) case of the Exchange Act; and
(ii) each Adviser, 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, properties, operations, management or operations personnel of the Company EntitiesAdviser, taken as a wholewhether or not arising from transactions in the ordinary course of business, from that set forth in the Time of Sale Prospectus thatProspectus, the effect of which in any case referred to in clause (1) or (2) above is, in the sole judgment of the Representatives’ judgment, is so material and adverse and that makes it, in the Representatives’ judgment, impracticable or inadvisable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Representatives Underwriters shall have received on the Closing Date a certificatecertificates, dated the Closing Date, addressed to of the Underwriters chief executive officer and signed by chief financial officer (or officers acting in similar capacities) of the Fund and an executive officer of the Companyeach Adviser, to the effect set forth (i) that no stop order suspending the effectiveness of the Registration Statement is in Section 6(a) above effect, and no proceedings for such purpose are, as of the Closing Date, pending before or, to the effect knowledge of the Fund or such Adviser, threatened by the Commission, (ii) that the representations and warranties of the Company Parties Fund and such Adviser contained in this Agreement are true and correct as of the Closing Date Date, (iii) that each of the Fund and that the Company Parties have Advisers 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 (iv) as set forth in Section 6(a) above, with respect to the Fund or such Adviser, as applicable. The Each officer signing and delivering such a certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) Each of the Advisers and the Fund shall have performed all of their respective obligations to be performed hereunder on or prior to the Closing Date.
(d) The Representatives Underwriters shall have received on the Closing Date an opinion of Xxxxxxxx & Xxxxx LLPK&L Gates LLP (“K&L Gates”), outside special counsel for the CompanyFund, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representativesrepresentatives of the Underwriters, substantially to the effect set forth in the form attached hereto as Exhibit C.A-1 hereto.
(de) The Representatives Underwriters shall have received on the Closing Date (i) an opinion of Xxxxxx & Xxxxxx L.L.P., internal counsel for the UnderwritersAdviser and (ii) an opinion of internal counsel for the Subadviser, each dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representativesrepresentatives of the Underwriters, to the effect respectively set forth in Exhibit A-2 and Exhibit A-3 hereto.
(f) The Underwriters shall have received on the Closing Date the favorable opinion of Xxxxxxxx Chance US LLP (“Xxxxxxxx Chance”), counsel for the Underwriters, dated the Closing Date, and covering such matters as the Underwriters shall reasonably request. With respect to Sections 6(c) and 6(dIn rendering the opinions described in Section 6(f) above, as to matters of Massachusetts law, Xxxxxxxx & Xxxxx LLP and Xxxxxx & Xxxxxx L.L.P. Chance may state that their opinions and beliefs are based upon their participation in rely on 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 Xxxxxxxx & Xxxxx Xxxxxxx XxXxxxxxx LLP described in Section 6(c) above shall be rendered (“Xxxxxxx XxXxxxxxx”), so long as a copy of such opinion of Xxxxxxx XxXxxxxxx is delivered to the Underwriters at the request of the Company Parties you and shall so state therein.
(e) The Representatives shall have received from Deloitte a “comfort letter” (the “initial comfort letter”) dated as of the date hereof and addressed to the Underwriters, is in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act you and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commissionyour counsel, and (ii) stating, as such opinion of Xxxxxxx XxXxxxxxx expressly permits reliance thereon by Xxxxxxxx Chance for purposes of rendering the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the most recent Time of Sale Prospectus, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(f) The Representatives shall have received from Deloitte a “bring-down comfort letter” (the “bring-down comfort letter”) dated as of the Closing Date or the Option Closing Date, as the case may be, and addressed to the Underwriters, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the Closing Date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter, and (iii) confirming in all material respects the conclusions and findings set forth in the initial letterforegoing opinion.
(g) The Representatives Underwriters shall have received from Von Gonten on the Closing Date a letter (the “Initial Expert Letter”)certificate, dated as of the date hereofClosing Date, from a duly authorized officer of each of the Custodian and the Transfer Agent, certifying that the Custodian Agreement and the Transfer Agency Agreement, as applicable, is in form full force and substance satisfactory to effect and is a valid and binding agreement of the RepresentativesCustodian or the Transfer Agent, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offeringsapplicable.
(h) The Representatives Underwriters shall have received from Von Gonten a subsequent letter, dated as of on the Closing Date a certificate from a duly authorized officer of the Adviser certifying that the Administration Agreement is in full force and effect and is a valid and binding agreement of the Adviser.
(i) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Option Closing Date, as the case may be, in form and substance satisfactory to the RepresentativesUnderwriters, which such from [—], 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 and the Time of Sale Prospectus, provided that the letter shall cover the period from the Initial Expert Letter to delivered on the Closing Date or the Option Closing Date, as the case may be, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offerings.
(i) The shall use a “lockcut-upoff date” agreements, each substantially in the form of Exhibit A hereto, between the Representatives and those certain stockholders, officers and directors of the Company named in Schedule IV hereto relating to sales and certain other dispositions of shares of stock of the Company or certain other securities, delivered to the Representatives on or before not earlier than the date hereof, shall be in full force and effect on the Closing Date.
(j) The Operative Agreements shall have been executed All filings, applications and delivered proceedings taken by the Company Entities party thereto Fund and the Advisers in connection with the organization and registration of the Fund and the Shares under the Acts and the applicable Rules and Regulations shall be satisfactory in full force form and effect on such datesubstance to you and counsel for the Underwriters.
(k) No action, suit, proceeding, inquiry or investigation shall have been instituted or, to the knowledge of the Fund or the Advisers, threatened by the Commission which would adversely affect the Fund’s standing as a registered investment company under the Investment Company Act or the standing of the Adviser or Subadviser as a registered investment adviser under the Advisers Act.
(l) The Shares shall have been duly authorized for listing on the New York Stock Exchange, subject only to official notice of issuance thereof.
(m) On the Closing Date, the Adviser shall deliver to each of the other parties to the Fee Agreements copies of the Fee Agreements, executed by such Adviser and dated the Closing Date, together with reproduced copies of such agreements executed by the Adviser for each of the other parties thereto. The several obligations of the Underwriters to purchase Additional Shares hereunder are subject to the delivery to the Representatives 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 Xxxxxxxx & Xxxxx 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 & Xxxxxx L.L.P., 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(d) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Deloitte, 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 three business days prior to such Option Closing Date;
(v) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Von Gonten, independent reserves engineers, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(h) hereof; and
(vi) such other documents as the Representatives you may reasonably request with respect to the good standing of the Company EntitiesFund and the Advisers, 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 Additional Shares, and officers’ certificates and opinions of K&L Gates, internal counsel for the Investment Adviser, internal counsel for the Subadviser and Xxxxxxxx Chance to the effect set forth above, except that such certificates and opinions shall be dated as of the applicable Option Closing Date and statements and opinions above contemplated to be given as of the Closing Date shall instead be made and given as of such Option Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (Nuveen Real Asset Income & Growth Fund)
Conditions to the Underwriters’ Obligations. The obligations of the Company 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 [●] [a.m./p.m.] 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 the Company Entities its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62for purposes of Rule 436(g)(2) of 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 Entitiesand its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus that, in the Representatives’ your judgment, is material and adverse and that makes it, in the Representatives’ your judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Representatives Underwriters shall have received on the Closing Date a certificate, dated the Closing Date, addressed to the Underwriters Date and signed by an executive officer of the Company, to the effect set forth in Section 6(a6(a)(i) above and to the effect that the representations and warranties of the Company Parties contained in this Agreement are true and correct as of the Closing Date and that the Company Parties have 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 Representatives shall have received on the Closing Date an opinion of Xxxxxxxx & Xxxxx LLP, outside counsel for the Company, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as Exhibit C.
(d) The Representatives Underwriters shall have received on the Closing Date an opinion of Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx L.L.P.Xxxxxx, Professional Corporation, outside counsel for the Company, dated the Closing Date, to the effect that:
(i) the Company has been duly incorporated, is validly existing under, and by virtue of, the laws of the jurisdiction of its incorporation, and is in good standing under such laws. The Company has the corporate power and authority to own its property and to conduct its business as described in the Time of Sale Prospectus. The Company is qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its 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 or formed, is validly existing as a corporation or other entity in good standing under the laws of the jurisdiction of its incorporation or formation and has the corporate or limited liability company power and authority, as the case may be, to own its property and to conduct its business as described in the Time of Sale Prospectus. Each such subsidiary is 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 as of [September 30], 2006 was as set forth in each of the Time of Sale Prospectus and the Prospectus under the “Actual” column under the caption “Capitalization;”
(iv) the shares of Common Stock (including the Shares to be sold by the Selling Shareholders) outstanding have been duly authorized and are validly issued, fully paid and non-assessable;
(v) all of the issued and outstanding capital stock or membership or other equity interests of each subsidiary of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and are owned directly or indirectly by the Company, free and clear (except as described in each of the Time of Sale Prospectus and the Prospectus) of all liens, encumbrances, equities or claims;
(vi) this Agreement has been duly authorized, executed and delivered by the Company;
(vii) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement do not contravene any provision of the Certificate of Incorporation or Bylaws of the Company, any provision of any applicable federal or Washington State law, rule or regulation or of the Delaware General Corporation Law, or, to such counsel’s knowledge after inquiry, any agreement or other instrument binding upon the Company or any of its subsidiaries that is filed as an exhibit to the Registration Statement, or, to such counsel’s knowledge after inquiry, 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;
(viii) the statements relating to legal matters, documents or proceedings included in (A) the Time of Sale Prospectus and the Prospectus under the captions “Risk Factors–If our arrangements with our affiliated radiologists or our customers are found to violate….”, “Risk Factors–If our affiliated radiologists are characterized as employees….”, “Risk Factors–Changes in the regulatory environment may constrain or require us to restructure our operations,” “Business–Operations–Affiliated radiologists,” “Business–Intellectual Property,” “Management–Employee Benefit Plans,” “Management –Limitation on Liability and Indemnification Matters,” “Certain Relationships and Related Party Transactions,” “Description of Capital Stock,” “Shares Eligible for Future Sale,” “Material United States Federal Tax Considerations for Non-U.S. Holders of Common Stock,” and “Underwriters” (except for the statements in the third and seventh paragraphs under “Underwriters” as to which such counsel expresses no opinion) and (B) the Registration Statement in Items 14 and 15, in each case fairly summarize in all material respects such matters, documents or proceedings;
(ix) 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 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;
(x) 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
(xi) the Registration Statement was declared effective under the Act; any required filing of the Prospectus, and any supplements thereto, pursuant to Rule 424(b) have been made in the manner and within the time period required by Rule 424(b); and to such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement or any part thereof has been issued, and no proceedings for that purpose have been instituted or are pending or contemplated under the Act. In addition, the opinion shall include a statement from such counsel to the effect that (i) such counsel has participated in conferences with certain officers and other representatives of the Company, the representatives of the Underwriters, counsel for the Underwriters and the independent public accountants of the Company, at which conferences the contents of the Registration Statement and Prospectus and related matters were reviewed and discussed, and (ii) although such counsel does 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, nothing has come to the attention of such counsel through such review and discussion as described therein, that causes such counsel to believe that the Registration Statement, at the time it became effective, or 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 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) 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. In addition, the opinion shall include a statement from such counsel that 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 belief) comply as to form in all material respects to the requirements of the Securities Act and the applicable rules and regulations of the Commission thereunder.
(d) The Underwriters shall have received on the Closing Date an opinion of Barandun Xxxx von Graffenried, Swiss counsel for the Company, dated the Closing Date, covering the matters set forth in Exhibit B, in form and substance satisfactory to the Underwriters.
(e) The Underwriters shall have received on the Closing Date an opinion of Xxxxx & XxXxxxxx, Australian counsel for the Company, dated the Closing Date, covering the matters set forth in Exhibit C, in form and substance satisfactory to the Underwriters.
(f) The Underwriters shall have received on the Closing Date an opinion of Xxxx Xxxxx LLP, regulatory counsel for the Company, dated the Closing Date, to the effect that:
(i) To such counsel’s knowledge, the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby do not violate any U.S. federal or state statute, regulation or other law relating to the practice of medicine and the regulation of the radiology and radiological interpretation industry that is applicable to the business and operations of the Company and its subsidiaries, as described in the section of the Prospectus and the Time of Sale Prospectus captioned “Business”;
(ii) The statements specifically contained in each of the Prospectus and the Time of Sale Prospectus under “Risk Factors–Enforcement of state and federal anti-kickback laws may adversely affect….”, “Risk Factors–Because our customers submit claims to the Medicare program based on the services we provide….”, “Risk Factors—Medicare and Medicaid rules governing reassignment of payments….”, Risk Factors—Our business could be materially affected if a U.S. Department of Health & Human Services Office of Inspector General….” and “Business–Government Regulation and Supervision” have been reviewed by such counsel, and to such counsel’s knowledge, such statements are accurate in all material respects. To such counsel’s knowledge, other than the laws and the regulations described in such sections, there are no other U.S. federal or state laws or regulations specifically and primarily relating to the practice of medicine and the regulation of the radiology and radiological interpretation industry that are material to the business and operations of the Company and its subsidiaries, as described in the section of the Prospectus and the Time of Sale Prospectus captioned “Business.”
(g) The Underwriters shall have received on the Closing Date opinions, dated the Closing Date, of each of Xxxxxxxx & Xxxxx LLP and Xxxx Xxxxxx, Vice President and General Counsel of the Company, as counsel for the Selling Shareholders in the forms of Exhibit D and Exhibit E hereto, respectively.
(h) The Underwriters shall have received on the Closing Date an opinion of Xxxxx Xxxx & Xxxxxxxx, counsel for the Underwriters, dated the Closing Date Date, covering the matters referred to in Sections 6(c)(vi) and addressed 6(c)(viii) (but only as to the statements in each of the Time of Sale Prospectus and the Prospectus under “Description of Capital Stock” and “Underwriters, in form ”) and substance reasonably satisfactory to the Representativeslast paragraph of Section 6(c) above. With respect to Sections the last paragraph of Section 6(c) and 6(d) above, Xxxxxx Xxxxxxx Xxxxxxxx and Xxxxxx, Professional Corporation and Xxxxx Xxxx & Xxxxx LLP and Xxxxxx & Xxxxxx L.L.P. Xxxxxxxx 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 opinions of Xxxxxx Xxxxxxx Xxxxxxxx and Xxxxxx, Professional Corporation, Barandun Xxxx von Graffenried, Xxxxx & XxXxxxxx, Xxxx Xxxxx LLP, Xxxxxxxx & Xxxxx LLP and Xxxx Xxxxxx described in Section and delivered pursuant to Sections 6(c) ), 6(d), 6(e), 6(f), and 6(g), respectively, above shall be rendered to the Underwriters at the request of the Company Parties or one or more of the Selling Shareholders, as the case may be, and shall so state therein.
(ei) The Representatives Underwriters shall have received from Deloitte a “comfort letter” (the “initial comfort letter”) dated as of received, on the date hereof and addressed to the UnderwritersClosing Date, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of a letter dated the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the most recent Time of Sale Prospectus, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(f) The Representatives shall have received from Deloitte a “bring-down comfort letter” (the “bring-down comfort letter”) dated as of the Closing Date or the Option Closing Date, as the case may be, and addressed to the Underwriters, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the Closing Date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter, and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(g) The Representatives shall have received from Von Gonten a letter (the “Initial Expert Letter”), dated as of the date hereof, in form and substance satisfactory to the Representatives, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offerings.
(h) The Representatives shall have received from Von Gonten a subsequent letter, dated as of the Closing Date or the Option Closing Date, as the case may be, in form and substance satisfactory to the RepresentativesUnderwriters, which such from Deloitte and 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 shall cover the period from the Initial Expert Letter to delivered on the Closing Date or shall use a “cut off date” not earlier than the Option Closing Datedate hereof.
(j) The Underwriters shall have received on the date hereof a letter dated the date hereof in form and substance satisfactory to the Underwriters, as from Xxxxxxxx, XxXxxx & Company, P.A., independent public accountants, containing statements and information of the case may be, stating the conclusions and findings of such firm type ordinarily included in accountants’ “comfort letters” to underwriters with respect to reserve the financial statements and other operational certain financial information contained in the Registration Statement, the Time of Sale Prospectus and other matters as is customary to underwriters in connection with registered public offerings.the Prospectus;
(ik) The “lock-lock up” agreements, each substantially in the form of Exhibit A hereto, between the Representatives you and those each officer, director and certain stockholders, officers and directors stockholders of the Company named in Schedule IV hereto relating to sales and certain other dispositions of shares of stock of the Company Common Stock or certain other securities, delivered to the Representatives you on or before the date hereof, shall be in full force and effect on the Closing Date.
(j) The Operative Agreements shall have been executed and delivered by the Company Entities party thereto and shall be in full force and effect on such date.
(k) . The several obligations of the Underwriters to purchase Additional Shares hereunder are subject to the delivery to the Representatives 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 Xxxxxxxx & Xxxxx 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 & Xxxxxx L.L.P., 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(d) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Deloitte, 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 three business days prior to such Option Closing Date;
(v) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Von Gonten, independent reserves engineers, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(h) hereof; and
(vi) such other documents as the Representatives you may reasonably request with respect to the good standing of the Company EntitiesCompany, 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 Additional Shares.
Appears in 1 contract
Samples: Underwriting Agreement (NightHawk Radiology 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 [●] [a.m./p.m.[ n ] (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 no order suspending the effectiveness of the Registration Statement shall not 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) no downgrading shall 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 debt securities, convertible securities or preferred shares issued or guaranteed by the securities of Company or any of the Company Entities its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Securities Exchange Act of 1934, as amended (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, condition or in the earnings, business or operations of the Company Entitiesand its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus and the Prospectus that, singly or in the Representatives’ judgment, aggregate is material and adverse and that makes it, in the Representatives’ Representative’s judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Representatives Underwriters shall have received on the Closing Date a certificate, dated the Closing Date, addressed to the Underwriters Date and signed by an executive officer of the Company, to the effect set forth in Section 6(aSections 6(a)(i) and 6(a)(ii) above and to the effect that the representations and warranties of the Company Parties contained in this Agreement are true and correct as of the Closing Date and that the Company Parties have 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 threatenedthreatened and shall deliver such certificate in his or her capacity as such officer and not his or her personal capacity.
(c) The Representatives Underwriters shall have received on the Closing Date an opinion and negative assurance letter of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, U.S. counsel for the Company, dated the Closing Date, substantially in the form and substance reasonably satisfactory to the Representative.
(d) The Underwriters shall have received on the Closing Date an opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx & Xxxxx LLP, outside U.S. counsel for the CompanySelling Shareholder, dated the Closing Date and addressed to Date, substantially in the Underwriters, in form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as Exhibit C.Representative.
(de) The Representatives Underwriters shall have received on the Closing Date an opinion of Xxxxxx N.V., Dutch counsel for the Company, dated the Closing Date, substantially in the form and substance reasonably satisfactory to the Representative.
(f) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx Avocats, Luxembourg counsel for the Selling Shareholder, dated the Closing Date, substantially in the form and substance reasonably satisfactory to the Representative.
(g) The Underwriters shall have received on the Closing Date an opinion and negative assurance letter of Xxxxxx & Xxxxxx L.L.P.Xxxxxxx LLP, counsel for the Underwriters, dated the Closing Date and addressed to the UnderwritersDate, in form and substance reasonably satisfactory to the RepresentativesRepresentative. With respect to the negative assurance letters to be delivered pursuant to Sections 6(c6(c) and 6(d6(g) above, Xxxxxxx Xxxxxxx & Xxxxxxxx & Xxxxx LLP and Xxxxxx & Xxxxxx L.L.P. 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 6(c) above, Xxxxxxx Xxxxxxx & Xxxxxxxx LLP may rely upon an opinion or opinions of counsel for the Selling Shareholder and, with respect to factual matters and to the extent such counsel deems appropriate, upon the representations of the Selling Shareholder contained herein and in other documents and instruments. The opinion opinions of Xxxxxxx Xxxxxxx & Xxxxxxxx & Xxxxx LLP LLP, Xxxxxx N.V. and Xxxxxx Avocats described in Section 6(cSections 6(c), 6(d), 6(e) and 6(f) above shall be rendered to the Underwriters at the request of the Company Parties and shall so state therein.
(e) The Representatives shall have received from Deloitte a “comfort letter” (the “initial comfort letter”) dated as of the date hereof and addressed to the Underwriters, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the most recent Time of Sale Prospectus, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(f) The Representatives shall have received from Deloitte a “bring-down comfort letter” (the “bring-down comfort letter”) dated as of the Closing Date or the Option Closing DateSelling Shareholder, as the case may be, and addressed to the Underwriters, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the Closing Date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter, and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(g) The Representatives shall have received from Von Gonten a letter (the “Initial Expert Letter”), dated as of the date hereof, in form and substance satisfactory to the Representatives, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offerings.
(h) The Representatives Underwriters shall have received from Von Gonten a subsequent letterreceived, dated as on each of the date hereof and the Closing Date Date, letters dated the date hereof or the Option Closing Date, as the case may be, in form and substance satisfactory to the RepresentativesUnderwriters, which such letter shall cover from RSM US LLP, independent public accountants, containing statements and information of the period from type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the Initial Expert Letter to financial statements and certain financial information contained in the Registration Statement, the Time of Sale Prospectus and the Prospectus; provided that the letters delivered on the Closing Date or shall use a “cut-off date” not earlier than the Option Closing Date, as the case may be, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offeringsdate hereof.
(i) The “lockLock-up” agreements, each substantially in the form of Exhibit A hereto, up Agreements between the Representatives and those certain stockholdersshareholders, officers and directors of the Company named in Schedule IV hereto relating to sales and certain other dispositions of shares of stock of the Company or certain other securities, delivered to the Representatives on or before the date hereof, shall be in full force and effect on the Closing Date.
(j) The Operative Agreements shall have been executed and delivered by the Company Entities party thereto and shall be in full force and effect on such date.
(k) The several obligations of the Underwriters to purchase Additional Shares hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the followingfollowing if such Option Closing Date is different than the Closing Date:
(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(b6(b) hereof remains true and correct as of such Option Closing Date;
(ii) an opinion and negative assurance letter of Xxxxxxx Xxxxxxx & Xxxxxxxx & Xxxxx LLP, outside U.S. counsel for the Company, dated the Option Closing Date, relating to the Additional Shares to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c6(c) hereof;
(iii) an opinion of Xxxxxx Xxxxxxx Xxxxxxx & Xxxxxx L.L.P.Xxxxxxxx LLP, U.S. counsel for the UnderwritersSelling Shareholder, dated the Option Closing Date, relating to the Additional Shares to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(d) hereof;
(iv) a an opinion of Xxxxxx N.V., Dutch 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(e) hereof;
(v) an opinion of Stibbe Avocats, Luxembourg counsel for the Selling Shareholder, dated the Option Closing Date, relating to the Additional Shares to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(f) hereof;
(vi) 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(g) hereof;
(vii) letter dated the Option Closing Date, in form and substance satisfactory to the RepresentativesUnderwriters, from DeloitteRSM US LLP, independent public accountants, substantially in the same form and substance as the letter letters furnished to the Underwriters pursuant to Section 6(f6(h) hereof; provided that the letter letters delivered on the Option Closing Date shall use a “cut-off date” not earlier than three two business days prior to such Option Closing Date;
(v) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Von Gonten, independent reserves engineers, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(h) hereof; and
(viviii) such other documents as the Representatives may reasonably request with respect to the good standing valid existence of the Company EntitiesCompany, 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 Additional Shares.
Appears in 1 contract
Conditions to the Underwriters’ Obligations. The obligations of the Company to sell the Shares to the Underwriters and the several obligations of the Underwriters to purchase and pay for the Shares on the Closing Date are subject to the condition that the Registration Statement shall have become effective not later than [●] [a.m./p.m.] 5:30 p.m. (New York City time) on the date hereof. The several obligations of the Underwriters are subject to the following further conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company's securities of any of the Company Entities by any “"nationally recognized statistical rating organization,” " as such term is defined in Section 3(a)(62for purposes of Rule 436(g)(2) of 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 Entities, taken as a wholeCompany, from that set forth in the Time Prospectus (exclusive of Sale Prospectus any amendments or supplements thereto subsequent to the date of this Agreement) that, in the Representatives’ your judgment, is material and adverse and that makes it, in the Representatives’ your judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Representatives Underwriters shall have received on the Closing Date a certificate, dated the Closing Date, addressed to the Underwriters Date and signed by an executive officer of the Company, to the effect set forth in Section 6(aclause (a)(i) above and to the effect that the representations and warranties of the Company Parties contained in this Agreement are true and correct as of the Closing Date and that the Company Parties have 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 Representatives Underwriters shall have received on the Closing Date an opinion of Wilson, Sonsini, Xxxxxxxx & Xxxxx LLPXxxxxx, Professional Corporation, outside counsel for the Company, dated the Closing Date and addressed 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 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;
(ii) other than Gilbralter Court Associates, to the knowledge of such counsel, the Company does not own any equity or capital interest in any corporation, partnership, joint venture, association or other entity;
(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 to be sold by the Company have been duly authorized and are validly issued, and nonassessable and, to such counsel's knowledge, fully paid;
(v) 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 nonassessable, and the issuance of such Shares will not be subject to any preemptive rights as set forth in the Company's Certificate of Incorporation or By laws or, to such counsel's knowledge, rights of first refusal or other similar rights;
(vi) to the knowledge of such counsel, there is no legal or beneficial owner of any securities of the Company who has any rights, not effectively satisfied or waived, to require registration of any shares of capital stock of the Company in connection with the filing of the Registration Statement;
(vii) the Company has corporate power and authority to enter into this Agreement and to issue, sell and deliver to the Underwriters the Shares to be issued and sold by the Company;
(viii) this Agreement has been duly authorized, executed and delivered by the Company;
(ix) 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 the of such counsel's knowledge, any agreement or other instrument binding upon the Company that is material to the Company (where such agreements and instruments being those set forth as exhibits to the Registration Statement, including those incorporated by reference therein) 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, 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;
(x) the Registration Statement has become effective under the Securities Act, and, to such counsel's knowledge, no stop order proceedings with respect thereto have been instituted or are pending or threatened under the Securities Act, and (B) any required filing of the Prospectus and any supplement thereto pursuant to Rule 424(b) under the Securities Act has been made in the manner and within the time period required by such Rule 424(b);
(xi) the Shares to be sold under this Agreement to the Underwriters by the Company are duly authorized for quotation on The Nasdaq National Market;
(xii) the statements (A) in the Prospectus under the captions "Description of Capital Stock" and "Underwriters" (as such relates solely to a description of this Agreement), (B) the description of the Company's Preferred Share Purchase Rights contained in the Registration Statement on Form 8-A filed with the Commission on January 17, 1997 and incorporated by reference in the Registration Statement, (C) the descriptions of the Company's 1992 Stock Plan, the Company's 1994 Director Option Plan and the Company's Employee Stock Purchase Plan in the Company's Definitive Proxy Statement on Schedule 14A and Notice of Annual Meeting of Stockholders filed with the Commission on June 26, 1997 and incorporated by reference in the Registration Statement and (D) in the Registration Statement in Items 14 and 15, in form 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 substance reasonably satisfactory proceedings and fairly summarize the matters referred to therein;
(xiii) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company is a party or to which any of the properties of the Company 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 RepresentativesRegistration Statement that are not described or filed as required;
(xiv) the Company is not and, substantially 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;
(xv) the Company (A) is in compliance with any and all applicable Environmental Laws, (B) has received all permits, licenses or other approvals required of it under applicable Environmental Laws to conduct its business and (C) is 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;
(xvi) the Agreement and Plan of Merger (the "Plan of Merger") by and between the Company and Spectrian Corporation, a California Corporation ("Spectrian"), has been duly authorized by all necessary board of directors and stockholder and shareholder action on the part of the Company and Specrian and has been duly executed and delivered by each of the parties thereto;
(xvii) the execution and delivery of the Plan of Merger and the consummation of the merger contemplated thereby does not contravene any provision of applicable law or the certificate of incorporation or bylaws of the Company or the articles of incorporation or bylaws of Spectrian or any agreement or other instrument binding upon the Company that is material to the Company, (where such agreements and instruments being those as including those incorporated by reference therein) or, to such counsel's knowledge, any judgment or decree of any governmental body, agency or court having jurisdiction over Spectian, and no consent, approval, authorization or order of or qualification with any governmental body or agency is required for the performance by the Company and Spectrian of its obligations under the Plan of Merger except such as have been obtained;
(xviii) the merger contemplated by the Plan of Merger is effective under the laws of the State of California and the State of Delaware; and
(xix) In addition, such counsel shall state that in addition to rendering legal advice and assistance to the Company in the course of the preparation of the Registration Statement and the Prospectus, involving, among other things, discussions and inquiries concerning various legal matters and the review of certain corporate records, documents and proceedings (in addition to those described in paragraphs (i) through (xviii) above), such counsel also participated in conferences with certain officers and other representatives of the Company, including its independent certified public accountants and with the Underwriters and their counsel, at which the contents of the Registration Statement and the Prospectus and related matters were discussed; provided, such counsel may state that they have not independently verified the accuracy, completeness or fairness of the information contained in the Registration Statement and Prospectus. Such counsel shall also state that based upon its participation as described in the preceding paragraph, (i) they believe that the Registration Statement and the Prospectus (except for financial statements and schedules and other financial data derived therefrom as to which they need express no belief) complied as to form attached hereto in all material respects with the requirements of the Act and the rules and regulations of the Commission therunder and (ii) they confirm that they have no reason to believe that (except for financial statements and schedules and other financial data derived therefrom as Exhibit C.to which they need express no belief) the Registration Statement, as of its effective date, contained any untrue statement of material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that (except for financial statements and schedules and other financial dada derived therefrom as to which they need express no belief) the Prospectus, on a material fact or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(d) The Representatives Underwriters shall have received on the Closing Date an opinion of Xxxxxxxxx Xxxxxxx Xxxxxx Xxxxxxxxxx Xxxxxxxx & Xxxxxx L.L.P.Xxxxxxxxx, LLP, counsel for the Underwriters, dated the Closing Date and addressed Date, covering the matters referred to in subparagraphs (v), (viii), (xii) (but only as to the statements in the Prospectus under "Description of Capital Stock" and "Underwriters, ") and the last of paragraph in form and substance reasonably satisfactory to the RepresentativesSection (c) above. With respect to Sections 6(c) and 6(dthe last paragraph in Section (c) above, Wilson, Sonsini, Xxxxxxxx & Xxxxx LLP Xxxxxx, Professional Corporation and Xxxxxxxxx Xxxxxxx Xxxxxx Xxxxxxxxxx Xxxxxxxx & Xxxxxx L.L.P. Xxxxxxxxx, LLP, may state that their opinions opinion and beliefs belief are based upon their participation in the preparation of the Registration Statement, the Time of Sale Prospectus Statement 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 opinions of Wilson, Sonsini, Xxxxxxxx & Xxxxx LLP Xxxxxx, Professional Corporation, described in Section 6(cparagraph (c) above above, shall be rendered to the Underwriters at the request of the Company Parties Company, and shall so state therein.
(e) The Representatives Underwriters shall have received from Deloitte a “comfort letter” (the “initial comfort letter”) dated as received, on each of the date hereof and addressed to the UnderwritersClosing Date, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of a letter dated the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the most recent Time of Sale Prospectus, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(f) The Representatives shall have received from Deloitte a “bring-down comfort letter” (the “bring-down comfort letter”) dated as of the Closing Date or the Option Closing Date, as the case may be, and addressed to the Underwriters, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the Closing Date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter, and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(g) The Representatives shall have received from Von Gonten a letter (the “Initial Expert Letter”), dated as of the date hereof, in form and substance satisfactory to the Representatives, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offerings.
(h) The Representatives shall have received from Von Gonten a subsequent letter, dated as of the Closing Date or the Option Closing Date, as the case may be, in form and substance satisfactory to the RepresentativesUnderwriters, which such from KPMG Peat Marwick LLP, independent certified 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 and the Prospectus; PROVIDED that the letter shall cover the period from the Initial Expert Letter to delivered on the Closing Date or shall use a "cut-off date" not earlier than the Option Closing Date, as the case may be, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offeringsdate hereof.
(if) The “"lock-up” agreements, each substantially in the form of Exhibit A hereto, " agreements between the Representatives you and those certain stockholders, officers and directors of the Company named in Schedule IV hereto relating to sales and certain other dispositions of shares of stock of the Company Common Stock or certain other securities, delivered to the Representatives you on or before the date hereof, shall be in full force and effect on the Closing Date.
(j) The Operative Agreements shall have been executed and delivered by the Company Entities party thereto and shall be in full force and effect on such date.
(k) . The several obligations of the Underwriters to purchase Additional Shares hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate, dated the Option Closing Date and signed by an executive officer of the Company, confirming that the certificate delivered on the Closing Date pursuant to Section 6(b) hereof remains true and correct as of such Option Closing Date;
(ii) an opinion of Xxxxxxxx & Xxxxx 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 & Xxxxxx L.L.P., 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(d) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Deloitte, 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 you on the Option Closing Date shall use a “cut-off date” not earlier than three business days prior to of such Option Closing Date;
(v) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Von Gonten, independent reserves engineers, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(h) hereof; and
(vi) such other documents as the Representatives you may reasonably request with respect to the good standing of the Company EntitiesCompany, 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 the Additional Shares.
Appears in 1 contract
Conditions to the Underwriters’ Obligations. The obligations of the Company to sell the Shares to the Underwriters and the several obligations of the Underwriters to purchase and pay for the Shares on the Closing Date are subject to the condition that the Registration Statement shall have become effective not later than [●] [a.m./p.m.a.m.] ([p.m.], New York City time) 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 the Company Entities its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) 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 Entitiesand its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus that, in the Representatives’ judgment, is material and adverse and that makes it, in the Representatives’ judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Representatives Underwriters shall have received on the Closing Date a certificate, dated the Closing Date, addressed to the Underwriters Date and signed by an executive officer of the Company, to the effect set forth in Section 6(a5(a)(i) above and to the effect that the representations and warranties of the Company Parties contained in this Agreement are true and correct as of the Closing Date and that the Company Parties have 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 Representatives Underwriters shall have received on the Closing Date an opinion and negative assurance letter of Xxxxxxxx & Xxxxx Xxxxxxx Procter LLP, outside counsel for the Company, dated the Closing Date and addressed to the UnderwritersDate, in form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as Exhibit C.Underwriters.
(d) The Representatives Underwriters shall have received on the Closing Date an opinion of each of Xxxxxxx Xxxx & Xxxxxxx Limited and Andulf Advokat AB, outside counsel for the Company, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriters.
(e) The Underwriters shall have received on the Closing Date an opinion of each of Xxxxxx LLP; Xxxxxx Xxxxxxx Xxxxx & Xxxxxx L.L.P.Xxxxxxxxxxx LLP; Fish & Xxxxxxxxxx; and Wolf, Greenfield & Sacks, P.C., intellectual property counsel for the Company, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriters.
(f) The Underwriters shall have received on the Closing Date an opinion and negative assurance letter of Ropes & Xxxx LLP, counsel for the Underwriters, dated the Closing Date and addressed to the UnderwritersDate, in form and substance reasonably satisfactory to the RepresentativesUnderwriters. With respect to Sections 6(c5(c) and 6(d5(f) above, Xxxxxxxx & Xxxxx Xxxxxxx Procter LLP and Xxxxxx Ropes & Xxxxxx L.L.P. Xxxx LLP, respectively, may state that their opinions and beliefs are based upon their participation in the preparation of the Registration Statement, the Time of Sale Prospectus and the Prospectus and any amendments or supplements thereto and review and discussion of the contents thereof, but are without independent check or verification, except as specified. The opinion of Xxxxxxxx & Xxxxx Xxxxxxx Procter LLP described in Section 6(c5(c) above shall be rendered to the Underwriters at the request of the Company Parties and shall so state therein.
(eg) The Representatives Underwriters shall have received from Deloitte a “comfort letter” (the “initial comfort letter”) dated as received, on each of the date hereof and addressed to the UnderwritersClosing Date, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of a letter dated the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the most recent Time of Sale Prospectus, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(f) The Representatives shall have received from Deloitte a “bring-down comfort letter” (the “bring-down comfort letter”) dated as of the Closing Date or the Option Closing Date, as the case may be, and addressed to the Underwriters, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the Closing Date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter, and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(g) The Representatives shall have received from Von Gonten a letter (the “Initial Expert Letter”), dated as of the date hereof, in form and substance satisfactory to the Representatives, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offerings.
(h) The Representatives shall have received from Von Gonten a subsequent letter, dated as of the Closing Date or the Option Closing Date, as the case may be, in form and substance reasonably satisfactory to the RepresentativesUnderwriters, which such 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 contained in the Registration Statement, the Time of Sale Prospectus and the Prospectus; provided that the letter shall cover the period from the Initial Expert Letter to delivered on the Closing Date or shall use a “cut-off date” not earlier than the Option Closing Date, as the case may be, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offeringsdate hereof.
(ih) The “lock-up” up agreements, each substantially in the form of Exhibit A hereto, between among the Representatives and those certain stockholdersthe shareholders, officers and directors of the Company named in Schedule IV hereto relating to sales and certain other dispositions of shares of stock of the Company Common Stock or certain other securities, delivered to 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 Underwriters shall have received, on each of the date hereof and the Closing Date, a certificate of the chief financial officer of the Company certifying as to the accuracy of certain financial information included in the Registration Statement, the Time of Sale Prospectus and the Prospectus, in form and substance reasonably satisfactory to the Underwriters.
(j) The Operative Agreements Underwriters shall have been executed received, on each of the date hereof and delivered by at the Company Entities party thereto Closing Date, such other documents as the Representatives may reasonably request with respect to the good standing of the Company, the due authorization and shall issuance of the Shares to be in full force sold on the Closing Date and effect on such dateother matters related to the issuance of the Shares.
(k) The several obligations of the Underwriters to purchase Additional Shares hereunder are subject to the delivery to 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(b5(b) hereof remains true and correct as of such Option Closing Date;
(ii) an opinion of Xxxxxxxx & Xxxxx Xxxxxxx 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 or opinions required by Section 5(c) hereof;
(iii) an opinion of each of Xxxxxxx Xxxx and Xxxxxxx Limited and Andulf Advokat AB, 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(c5(d) hereof;
(iiiiv) an opinion of each of Xxxxxx LLP; Xxxxxx Xxxxxxx Xxxxx & Xxxxxx L.L.P.Xxxxxxxxxxx LLP; Fish & Xxxxxxxxxx; and Wolf, Greenfield & Sacks, P.C., 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) 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 6(d5(f) hereof;
(ivvi) a letter dated the Option Closing Date, in form and substance satisfactory to the RepresentativesUnderwriters, from DeloitteErnst & Young LLP, independent public accountants, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(f5(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
(vvii) a letter certificate dated the Option Closing Date, in form Date and substance satisfactory signed by the chief financial officer of the Company certifying as to the Representatives, from Von Gonten, independent reserves engineers, substantially accuracy of certain financial information contained in the same form and substance Prospectus as the letter furnished to the Underwriters pursuant to Section 6(h) hereofof such Option Closing Date; and
(viviii) such other documents as the Representatives may reasonably request with respect to the good standing of the Company EntitiesCompany, 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 Additional Shares.
Appears in 1 contract
Conditions to the Underwriters’ Obligations. The obligations of the Company Selling Stockholders 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 [●] [a.m./p.m.] 5:15 p.m. (New York City time) on the date hereof. The several obligations of the Underwriters are subject to the performance by the ZoomInfo Parties and each of the Selling Stockholders of their covenants and obligations hereunder and the following further conditions:
(a) The representations and warranties of the ZoomInfo Parties and the Selling Stockholders contained herein shall be true and correct on the date hereof and on and as of the Closing Date in all material respects (except to the extent already qualified by materiality or Material Adverse Effect, in which case, such representations and warranties shall be true and correct in all respects); and the statements of the ZoomInfo Parties and the Selling Stockholders and each of their respective officers made in any certificates delivered pursuant to this Agreement shall be true and correct on and as of the Closing Date in all material respects (except to the extent already qualified by materiality or Material Adverse Effect, in which case, such representations and warranties shall be true and correct in all respects).
(b) 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 or the Base Prospectus 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 material adverse change, or any development involving a prospective material adverse change, in the condition, financial or otherwise, or in the earnings, business, management or operations of the Company and its Subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus and the Prospectus that, in your judgment, is so material and adverse that makes it, in your judgment, impracticable to market the Shares on the terms and in the manner contemplated by this Agreement, the Time of Sale Prospectus and the Prospectus; and
(iii) 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 the Company Entities its Subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) 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 Entities, taken as a whole, from that set forth in the Time of Sale Prospectus that, in the Representatives’ judgment, is material and adverse and that makes it, in the Representatives’ judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(bc) The Representatives Underwriters shall have received on the Closing Date (x) a certificate, dated the Closing Date, addressed to the Underwriters Date and signed by an executive officer of the Companyeach ZoomInfo Party on behalf of such ZoomInfo Party, to the effect set forth in Section 6(a6(b) above hereof and to the effect that the representation and warranties of the ZoomInfo Parties contained in this Agreement are true and correct in all material respects (except to the extent already qualified by materiality or Material Adverse Effect, in which case, such representations and warranties shall be true and correct in all respects) as of the Closing Date and that each ZoomInfo Party has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date, and (y) a certificate of each Selling Stockholder, dated the Closing Date and signed by an executive officer of each Selling Stockholder on behalf of such Selling Stockholder, to the effect that the representations and warranties of the Company Parties such Selling Stockholder contained in this Agreement are true and correct in all material respects (except to the extent already qualified by materiality or Material Adverse Effect, in which case, such representations and warranties shall be true and correct in all respects) as of the Closing Date and that the Company Parties have such Selling Stockholder has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The Each officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened, if applicable.
(cd) The Representatives Underwriters shall have received on the Closing Date an opinion and negative assurance letter of Xxxxxxx Xxxxxxx & Xxxxxxxx & Xxxxx LLP, outside counsel for the CompanyZoomInfo Parties, dated the Closing Date Date, in form and addressed substance reasonably satisfactory to the Representatives.
(e) The Underwriters shall have received on the Closing Date an opinion and negative assurance letter of Xxxxxx & Xxxxxxx LLP, counsel for the Underwriters, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives.
(f) The Underwriters shall have received on the Closing Date an opinion from each of: (w) Xxxxxxx Procter LLP, counsel for TA AP VII-B DO Subsidiary Partnership, L.P.; TA Atlantic and Pacific VII-A, L.P.; TA Atlantic and Pacific VII-B, L.P.; TA Investors IV, L.P.; TA SDF III DO AIV, L.P.; TA SDF III DO AIV II, L.P.; TA SDF III DO Feeder, L.P.; TA XI DO AIV, L.P.; TA XI DO AIV II, L.P.; and TA XI DO Feeder, L.P. (the “TA Selling Stockholders”); (x) (i) Debevoise & Xxxxxxxx LLP, special New York counsel for Carlyle Partners VI Dash Holdings, L.P. (the “Carlyle Selling Stockholder”); and (ii) Xxxxxxxx, Xxxxxx & Finger, PA, special Delaware counsel for the Carlyle Selling Stockholder; (y) Sidley Austin LLP, counsel for 22C Magellan Holdings LLC, 22C DiscoverOrg MM LLC, 22C Capital I-A, L.P., FiveW DiscoverOrg LLC and D. Xxxxxxx Xxxx (the “22C Selling Stockholders”); and (z) Xxxxxxx Coie LLP, counsel for DO Holdings (WA), LLC, in each case, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives.
(g) 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 reasonably satisfactory to the Representatives, from KPMG LLP, independent registered public accounting 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 “cutoff date” not earlier than the date hereof.
(h) The “lock-up” agreements, each substantially in the form attached of Exhibit A hereto (with any modifications or waivers as Exhibit C.you shall have previously agreed to), executed by each of the parties listed on Schedule IV hereto shall be in full force and effect.
(di) The Representatives Underwriters shall have received received, on each of the date hereof and the Closing Date an opinion of Xxxxxx & Xxxxxx L.L.P.Date, counsel for the Underwriters, a certificate dated the date hereof or the Closing Date and addressed to Date, as the Underwriterscase may be, in form and substance reasonably satisfactory to the Representatives, signed by the chief financial officer of the Company, containing statements and information with respect to certain financial information contained in the Registration Statement, the Time of Sale Prospectus and the Prospectus.
(j) The Shares to be delivered on the Closing Date shall have been approved for listing on the NASDAQ Global Select Market (the “Exchange”), subject to official notice of issuance.
(k) The Underwriters shall have received such other documents as you may reasonably request, including with respect to the good standing of each ZoomInfo Party and Selling Stockholder, the due authorization and issuance of the Shares and other matters related to the issuance and sale of the Shares. With respect to Sections 6(c6(d), 6(e) and 6(d6(f) abovehereof, Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, Xxxxxx & Xxxxx Xxxxxxx LLP, Xxxxxxx Procter LLP, Debevoise & Xxxxxxxx LLP and Xxxxxx & Xxxxxx L.L.P. Sidley Austin 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 opinions of Xxxxxxx Xxxxxxx & Xxxxxxxx & Xxxxx LLP described in Section 6(c6(d) above hereof shall be rendered to the Underwriters at the request of the Company ZoomInfo Parties and shall so state therein.
(e. The opinions of Xxxxxxx Procter LLP, Debevoise & Xxxxxxxx LLP and Sidley Austin LLP described in Section 6(f) The Representatives shall have received from Deloitte a “comfort letter” (the “initial comfort letter”) dated as of the date hereof and addressed to the Underwriters, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the most recent Time of Sale Prospectus, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(f) The Representatives shall have received from Deloitte a “bring-down comfort letter” (the “bring-down comfort letter”) dated as of the Closing Date or the Option Closing Date, as the case may be, and addressed to the Underwriters, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the Closing Date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter, and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(g) The Representatives shall have received from Von Gonten a letter (the “Initial Expert Letter”), dated as of the date hereof, in form and substance satisfactory to the Representatives, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offerings.
(h) The Representatives shall have received from Von Gonten a subsequent letter, dated as of the Closing Date or the Option Closing Date, as the case may be, in form and substance satisfactory to the Representatives, which such letter shall cover the period from the Initial Expert Letter to the Closing Date or the Option Closing Date, as the case may be, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offerings.
(i) The “lock-up” agreements, each substantially in the form of Exhibit A hereto, between the Representatives and those certain stockholders, officers and directors of the Company named in Schedule IV hereto relating to sales and certain other dispositions of shares of stock of the Company or certain other securities, delivered to the Representatives on or before the date hereof, shall be in full force and effect on the Closing Date.
(j) The Operative Agreements shall have been executed and delivered by the Company Entities party thereto and shall be in full force and effect on such date.
(k) The several obligations of the Underwriters to purchase Additional Shares hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate, dated the Option Closing Date and signed by an executive officer of the Company, confirming that the certificate delivered on the Closing Date pursuant to Section 6(b) hereof remains true and correct as of such Option Closing Date;
(ii) an opinion of Xxxxxxxx & Xxxxx 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 & Xxxxxx L.L.P., 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(d) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Deloitte, independent public accountants, substantially in the same form and substance as the letter furnished rendered to the Underwriters pursuant to Section 6(f) hereof; provided that at 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;
(v) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Von Gonten, independent reserves engineers, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(h) hereof; and
(vi) such other documents as the Representatives may reasonably request with respect to the good standing of the Company Entities, the due authorization applicable Selling Stockholder and issuance of the Additional Shares to be sold on such Option Closing Date and other matters related to the issuance of such Additional Sharesshall so state therein.
Appears in 1 contract
Samples: Underwriting Agreement (ZoomInfo Technologies Inc.)
Conditions to the Underwriters’ Obligations. The obligations of the Company to sell the Shares to the Underwriters and the several obligations of the Underwriters to purchase and pay for the Shares on the Closing Date are subject to the condition that the Registration Statement shall have become effective not later than [●4:00] [a.m./p.m.] p.m. (New York City time) on the date hereof. 1 NTD: 2 Business Days unless priced after 4:30 pm ET in which case 3 Business Days after the Underwriting Agreement date. The several obligations of the Underwriters are subject to the following further conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate no order suspending the direction effectiveness of the possible changeRegistration Statement shall be in effect, in and no proceeding for such purpose or pursuant to Section 8A under the rating accorded any of Securities Act shall be pending before or threatened by the securities of any of the Company Entities by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of 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 Entitiesand its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus that, in the Representatives’ judgment, is material and adverse and that makes it, in the Representatives’ judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Representatives Underwriters shall have received on the Closing Date a certificate, dated the Closing Date, addressed to the Underwriters Date and signed on behalf of the Company by an executive officer of the Company, to the effect set forth in Section 6(aSections 5(a)(i) and 5(a)(ii) above and to the effect that the representations and warranties of the Company Parties contained in this Agreement are true and correct as of the date hereof and as of the Closing Date and that the Company Parties have 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 Representatives Underwriters shall have received on the Closing Date an opinion and a negative assurance letter of Xxxxxxxx & Xxxxx Xxxxxx LLP, outside counsel for the Company, dated the Closing Date and addressed to the UnderwritersDate, in form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as Exhibit C..
(d) The Representatives Underwriters shall have received on the Closing Date an opinion and a negative assurance letter of Xxxxxx Xxxxxx, Xxxxxxxxxx & Xxxxxx L.L.P.Xxxxxxxxx LLP, counsel for the Underwriters, dated the Closing Date and addressed to Date, covering such matters as the Underwriters, in form and substance Representatives may reasonably satisfactory to the Representativesrequire. With respect to the opinions and negative assurance letters to be delivered pursuant to Sections 6(c5(c) and 6(d5(d) above, Xxxxxxxx & Xxxxx Xxxxxx LLP and Xxxxxx Xxxxxx, Xxxxxxxxxx & Xxxxxx L.L.P. Xxxxxxxxx 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 Xxxxxxxx & Xxxxx Xxxxxx LLP described in Section 6(c5(c) above shall be rendered to the Underwriters at the request of the Company Parties Company, as the case may be, and shall so state therein.
(e) The Representatives Underwriters shall have received from Deloitte a “comfort letter” (the “initial comfort letter”) dated as received, on each of the date hereof and addressed to the UnderwritersClosing Date, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of a letter dated the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the most recent Time of Sale Prospectus, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(f) The Representatives shall have received from Deloitte a “bring-down comfort letter” (the “bring-down comfort letter”) dated as of the Closing Date or the Option Closing Date, as the case may be, and addressed to the Underwriters, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the Closing Date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter, and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(g) The Representatives shall have received from Von Gonten a letter (the “Initial Expert Letter”), dated as of the date hereof, in form and substance satisfactory to the Representatives, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offerings.
(h) The Representatives shall have received from Von Gonten a subsequent letter, dated as of the Closing Date or the Option Closing Date, as the case may be, in form and substance satisfactory to the Representatives, which such 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 financial statements and certain financial information contained in the Registration Statement, the Time of Sale Prospectus and the Prospectus; provided that the letter shall cover the period from the Initial Expert Letter to delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
(f) The Underwriters shall have received, on each of the date hereof and the Closing Date, a certificate dated the date hereof or the Option Closing Date, as the case may be, stating and signed by the conclusions and findings chief financial officer of such firm the Company, in his capacity as such, with respect to reserve certain financial and other operational accounting information in the Registration Statement, the Time of Sale Prospectus and other matters as is customary the Prospectus, in form and substance reasonably satisfactory to underwriters in connection with registered public offeringsthe Representatives.
(ig) The “lock-up” agreements, each substantially in the form of Exhibit A heretohereto (with any such modifications as the Representatives shall have previously agreed to), between the Representatives and those the officers, directors and certain stockholders, officers and directors securityholders of the Company named Company, in Schedule IV hereto each case relating to restrictions on sales and certain other dispositions of shares of stock of the Company Common Stock or certain other securities, delivered to the Representatives on or before the date hereofhereof (the “Lock-up Agreements”), shall be in full force and effect on the Closing Date.
(jh) The Operative Agreements shall have been executed and delivered by Company will use its reasonable best efforts to list, subject to notice of issuance, the Company Entities party thereto and shall be in full force and effect Shares on such datethe Nasdaq Global Select Market.
(ki) The several obligations of the Underwriters to purchase Additional Shares hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate, dated the Option Closing Date and signed on behalf of the Company by an executive officer of the Company, confirming that the certificate delivered on the Closing Date pursuant to Section 6(b5(b) hereof remains true and correct as of such Option Closing Date;
(ii) an opinion and a negative assurance letter of Xxxxxxxx & Xxxxx 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 the negative assurance letter required by Section 6(c5(c) hereof;
(iii) an opinion and a negative assurance letter of Xxxxxx Xxxxxx, Xxxxxxxxxx & Xxxxxx L.L.P.Xxxxxxxxx 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 the negative assurance letter required by Section 6(d5(d) hereof;
(iv) a letter letter, dated the Option Closing Date, in form and substance satisfactory to the Representatives, from DeloitteDeloitte & Touche LLP, an independent registered public accountantsaccounting firm, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(f5(e) hereof; provided that the letter delivered on the Option Closing Date shall use a “cut-off date” not earlier than three two business days prior to such Option Closing Date;
(v) [a letter certificate, dated the Option Closing Date, in form Date and substance satisfactory to signed by the Representatives, from Von Gonten, independent reserves engineerschief financial officer of the Company, substantially in the same form and substance as the letter furnished certificate delivered to the Underwriters pursuant to Section 6(h5(f) hereofhereof]2; and
(vi) such other documents and certificates as the Representatives may reasonably request request, including but not limited to, with respect to the good standing of the Company Entitiesand its subsidiaries, 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 Additional Shares.
Appears in 1 contract
Conditions to the Underwriters’ Obligations. The obligations of the Company to sell the Shares to the Underwriters and the several obligations of the Underwriters to purchase and pay for the Shares on the Closing Date are subject to the condition that the Registration Statement shall have become effective not later than [●] [a.m./p.m.] 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 the Company Entities its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act; and
(ii) there shall not have occurred any material adverse change, or any development involving a prospective material adverse change, in or affecting the conditionbusiness, properties, management, financial position, stockholders’ equity, results of operations or otherwise, or in the earnings, business or operations prospects of the Company Entities, and its subsidiaries taken as a whole, from that set forth in the Time of Sale Prospectus that, in the Representatives’ judgment, is material and adverse and that makes it, in judgment of the Representatives’ judgment, makes it impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Representatives Underwriters shall have received on the Closing Date a certificate, dated the Closing Date, addressed to the Underwriters Date and signed on behalf of the Company by an executive officer of the Company, to the effect set forth in Section 6(a5(a)(i) above and to the effect that the representations and warranties of the Company Parties contained in this Agreement are true and correct as of the Closing Date and that the Company Parties have 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 Representatives Underwriters shall have received on the Closing Date an opinion and disclosure letter of Xxxxxxxx Fenwick & Xxxxx West LLP, outside counsel for the Company, dated the Closing Date and addressed to the UnderwritersDate, in form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as Exhibit C..
(d) The Representatives Underwriters shall have received on the Closing Date an opinion and disclosure letter of Xxxxxx Xxxxx Xxxx & Xxxxxx L.L.P.Xxxxxxxx LLP, counsel for the Underwriters, dated the Closing Date and addressed to the UnderwritersDate, in form and substance reasonably satisfactory to the Representatives. With respect to Sections 6(c) and 6(dSection 5(c) above, Xxxxxxxx & Xxxxx LLP and Xxxxxx & Xxxxxx L.L.P. 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 and Prospectus, the Prospectus and any amendments or supplements thereto and review and discussion of the contents thereof, but are without independent check or verification, except as specified. With respect to Section 5(d) 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, 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 Xxxxxxxx & Xxxxx LLP counsel for the Company described in Section 6(c5(c) above shall be rendered to the Underwriters at the request of the Company Parties and shall so state therein.
(e) The Representatives Underwriters shall have received from Deloitte a “comfort letter” (the “initial comfort letter”) dated as received, on each of the date hereof and addressed to the UnderwritersClosing Date, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of a letter dated the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the most recent Time of Sale Prospectus, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(f) The Representatives shall have received from Deloitte a “bring-down comfort letter” (the “bring-down comfort letter”) dated as of the Closing Date or the Option Closing Date, as the case may be, and addressed to the Underwriters, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the Closing Date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter, and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(g) The Representatives shall have received from Von Gonten a letter (the “Initial Expert Letter”), dated as of the date hereof, in form and substance satisfactory to the Representatives, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offerings.
(h) The Representatives shall have received from Von Gonten a subsequent letter, dated as of the Closing Date or the Option Closing Date, as the case may be, in form and substance satisfactory to the Representatives, which such 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 contained in the Registration Statement, the Time of Sale Prospectus and the Prospectus; provided that the letter shall cover the period from the Initial Expert Letter to delivered on the Closing Date or shall use a “cut‑off date” not earlier than two business prior to the Option date hereof.
(f) The Underwriters shall have received, on each of the date hereof and the Closing Date, a certificate signed by the Chief Financial Officer of the Company, dated respectively as of the case may bedate hereof and as of the Closing Date, stating in form and substance satisfactory to the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offeringsRepresentatives.
(ig) The “lock-uplock‑up” agreements, each substantially in the form of Exhibit A hereto, between the Representatives and those certain stockholders, the executive officers and directors of the Company named in Schedule IV hereto relating to sales and certain other dispositions of shares of stock of the Company Common Stock or certain other securities, delivered to the Representatives on or before the date hereof, shall be in full force and effect on the Closing Date.
(j) The Operative Agreements shall have been executed and delivered by the Company Entities party thereto and shall be in full force and effect on such date.
(kh) The several obligations of the Underwriters to purchase Additional Shares hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate, dated the Option Closing Date and signed on behalf of the Company by an executive officer of the Company, confirming that the certificate delivered on the Closing Date pursuant to Section 6(b5(b) hereof remains true and correct as of such Option Closing Date;
(ii) 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 certificate furnished to the Underwriters pursuant to Section 5(f) hereof;
(iii) an opinion of Xxxxxxxx Fenwick & Xxxxx West 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(c5(c) hereof;
(iiiiv) an opinion of Xxxxxx Xxxxx Xxxx & Xxxxxx L.L.P.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 6(d5(d) hereof;
(ivv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from DeloitteErnst & Young LLP, independent public accountants, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(f5(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;
(v) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Von Gonten, independent reserves engineers, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(h) hereof; and
(vi) such other documents as the Representatives may reasonably request with respect to the good standing of the Company EntitiesCompany, 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 Additional Shares.
Appears in 1 contract
Samples: Underwriting Agreement (Chegg, Inc)
Conditions to the Underwriters’ Obligations. The obligations of the Company 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 [●] [a.m./p.m.] 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 the Company Entities its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62for purposes of Rule 436(g)(2) of 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 Entitiesand its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus that, in the Representatives’ your judgment, is material and adverse and that makes it, in the Representatives’ your judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Representatives Underwriters shall have received on the Closing Date a certificate, dated the Closing Date, addressed to the Underwriters Date and signed by an executive officer of the Company, to the effect set forth in Section 6(a6(a)(i) above and to the effect that the representations and warranties of the Company Parties contained in this Agreement are true and correct as of the Closing Date and that the Company Parties have 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 Representatives shall have received on the Closing Date an opinion of Xxxxxxxx & Xxxxx LLP, outside counsel for the Company, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as Exhibit C.
(d) The Representatives Underwriters shall have received on the Closing Date an opinion of Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx L.L.P.Xxxxxx, Professional Corporation, outside counsel for the Company, dated the Closing Date, to the effect that:
(i) the Company has been duly incorporated, is validly existing under, and by virtue of, the laws of the jurisdiction of its incorporation, and is in good standing under such laws. The Company has the corporate power and authority to own its property and to conduct its business as described in the Time of Sale Prospectus. The Company is qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its 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 or formed, is validly existing as a corporation or other entity in good standing under the laws of the jurisdiction of its incorporation or formation and has the corporate or limited liability company power and authority, as the case may be, to own its property and to conduct its business as described in the Time of Sale Prospectus. Each such subsidiary is 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 as of [September 30], 2006 was as set forth in each of the Time of Sale Prospectus and the Prospectus under the “Actual” column under the caption “Capitalization;”
(iv) the shares of Common Stock (including the Shares to be sold by the Selling Shareholders) outstanding have been duly authorized and are validly issued, fully paid and non-assessable;
(v) all of the issued and outstanding capital stock or membership or other equity interests of each subsidiary of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and are owned directly or indirectly by the Company, free and clear (except as described in each of the Time of Sale Prospectus and the Prospectus) of all liens, encumbrances, equities or claims;
(vi) this Agreement has been duly authorized, executed and delivered by the Company;
(vii) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement do not contravene any provision of the Certificate of Incorporation or Bylaws of the Company, any provision of any applicable federal or Washington State law, rule or regulation or of the Delaware General Corporation Law, or, to such counsel’s knowledge after inquiry, any agreement or other instrument binding upon the Company or any of its subsidiaries that is filed as an exhibit to the Registration Statement, or, to such counsel’s knowledge after inquiry, 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;
(viii) the statements relating to legal matters, documents or proceedings included in (A) the Time of Sale Prospectus and the Prospectus under the captions “Risk Factors–If our arrangements with our affiliated radiologists or our customers are found to violate….”, “Risk Factors–If our affiliated radiologists are characterized as employees….”, “Risk Factors–Changes in the regulatory environment may constrain or require us to restructure our operations,” “Business–Operations–Affiliated radiologists,” “Business–Intellectual Property,” “Management–Employee Benefit Plans,” “Management –Limitation on Liability and Indemnification Matters,” “Certain Relationships and Related Party Transactions,” “Description of Capital Stock,” “Shares Eligible for Future Sale,” “Material United States Federal Tax Considerations for Non-U.S. Holders of Common Stock,” and “Underwriters” (except for the statements in the third and seventh paragraphs under “Underwriters” as to which such counsel expresses no opinion) and (B) the Registration Statement in Items 14 and 15, in each case fairly summarize in all material respects such matters, documents or proceedings;
(ix) 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 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;
(x) 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
(xi) the Registration Statement was declared effective under the Act; any required filing of the Prospectus, and any supplements thereto, pursuant to Rule 424(b) have been made in the manner and within the time period required by Rule 424(b); and to such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement or any part thereof has been issued, and no proceedings for that purpose have been instituted or are pending or contemplated under the Act. In addition, the opinion shall include a statement from such counsel to the effect that (i) such counsel has participated in conferences with certain officers and other representatives of the Company, the representatives of the Underwriters, counsel for the Underwriters and the independent public accountants of the Company, at which conferences the contents of the Registration Statement and Prospectus and related matters were reviewed and discussed, and (ii) although such counsel does 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, nothing has come to the attention of such counsel through such review and discussion as described therein, that causes such counsel to believe that the Registration Statement, at the time it became effective, or 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 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) 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. In addition, the opinion shall include a statement from such counsel that 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 belief) comply as to form in all material respects to the requirements of the Securities Act and the applicable rules and regulations of the Commission thereunder.
(d) [The Underwriters shall have received on the Closing Date an opinion of Barandun Xxxx von Graffenried, Swiss counsel for the Company, dated the Closing Date, covering the matters set forth in Exhibit B, in form and substance satisfactory to the Underwriters.]
(e) [The Underwriters shall have received on the Closing Date an opinion of Xxxxx & XxXxxxxx, Australian counsel for the Company, dated the Closing Date, covering the matters set forth in Exhibit C, in form and substance satisfactory to the Underwriters.]
(f) The Underwriters shall have received on the Closing Date an opinion of Xxxx Xxxxx LLP, regulatory counsel for the Company, dated the Closing Date, to the effect that:
(i) To such counsel’s knowledge, the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby do not violate any U.S. federal or state statute, regulation or other law relating to the practice of medicine and the regulation of the radiology and radiological interpretation industry that is applicable to the business and operations of the Company and its subsidiaries, as described in the section of the Prospectus and the Time of Sale Prospectus captioned “Business”;
(ii) The statements specifically contained in each of the Prospectus and the Time of Sale Prospectus under “Risk Factors–Enforcement of state and federal anti-kickback laws may adversely affect….”, “Risk Factors–Because our customers submit claims to the Medicare program based on the services we provide….”, “Risk Factors—Medicare and Medicaid rules governing reassignment of payments….”, Risk Factors—Our business could be materially affected if a U.S. Department of Health & Human Services Office of Inspector General….” and “Business–Government Regulation and Supervision” have been reviewed by such counsel, and to such counsel’s knowledge, such statements are accurate in all material respects. To such counsel’s knowledge, other than the laws and the regulations described in such sections, there are no other U.S. federal or state laws or regulations specifically and primarily relating to the practice of medicine and the regulation of the radiology and radiological interpretation industry that are material to the business and operations of the Company and its subsidiaries, as described in the section of the Prospectus and the Time of Sale Prospectus captioned “Business.”
(g) The Underwriters shall have received on the Closing Date opinions, dated the Closing Date, of each of Xxxxxxxx & Xxxxx LLP and Xxxx Xxxxxx, Vice President and General Counsel of the Company, as counsel for the Selling Shareholders in the forms of Exhibit D and Exhibit E hereto, respectively.
(h) The Underwriters shall have received on the Closing Date an opinion of Xxxxx Xxxx & Xxxxxxxx, counsel for the Underwriters, dated the Closing Date Date, covering the matters referred to in Sections 6(c)(vi) and addressed 6(c)(viii) (but only as to the statements in each of the Time of Sale Prospectus and the Prospectus under “Description of Capital Stock” and “Underwriters, in form ”) and substance reasonably satisfactory to the Representativeslast paragraph of Section 6(c) above. With respect to Sections the last paragraph of Section 6(c) and 6(d) above, Xxxxxx Xxxxxxx Xxxxxxxx and Xxxxxx, Professional Corporation and Xxxxx Xxxx & Xxxxx LLP and Xxxxxx & Xxxxxx L.L.P. Xxxxxxxx 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 opinions of Xxxxxx Xxxxxxx Xxxxxxxx and Xxxxxx, Professional Corporation, Barandun Xxxx von Graffenried, Xxxxx & XxXxxxxx, Xxxx Xxxxx LLP, Xxxxxxxx & Xxxxx LLP and Xxxx Xxxxxx described in Section and delivered pursuant to Sections 6(c) ), 6(d), 6(e), 6(f), and 6(g), respectively, above shall be rendered to the Underwriters at the request of the Company Parties or one or more of the Selling Shareholders, as the case may be, and shall so state therein.
(ei) The Representatives Underwriters shall have received from Deloitte a “comfort letter” (the “initial comfort letter”) dated as of received, on the date hereof and addressed to the UnderwritersClosing Date, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of a letter dated the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the most recent Time of Sale Prospectus, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(f) The Representatives shall have received from Deloitte a “bring-down comfort letter” (the “bring-down comfort letter”) dated as of the Closing Date or the Option Closing Date, as the case may be, and addressed to the Underwriters, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the Closing Date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter, and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(g) The Representatives shall have received from Von Gonten a letter (the “Initial Expert Letter”), dated as of the date hereof, in form and substance satisfactory to the Representatives, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offerings.
(h) The Representatives shall have received from Von Gonten a subsequent letter, dated as of the Closing Date or the Option Closing Date, as the case may be, in form and substance satisfactory to the RepresentativesUnderwriters, which such from Deloitte and 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 shall cover the period from the Initial Expert Letter to delivered on the Closing Date or shall use a “cut off date” not earlier than the Option Closing Datedate hereof.
(j) The Underwriters shall have received on the date hereof a letter dated the date hereof in form and substance satisfactory to the Underwriters, as from Xxxxxxxx, XxXxxx & Company, P.A., independent public accountants, containing statements and information of the case may be, stating the conclusions and findings of such firm type ordinarily included in accountants’ “comfort letters” to underwriters with respect to reserve the financial statements and other operational certain financial information contained in the Registration Statement, the Time of Sale Prospectus and other matters as is customary to underwriters in connection with registered public offerings.the Prospectus;
(ik) The “lock-lock up” agreements, each substantially in the form of Exhibit A hereto, between the Representatives you and those each officer, director and certain stockholders, officers and directors stockholders of the Company named in Schedule IV hereto relating to sales and certain other dispositions of shares of stock of the Company Common Stock or certain other securities, delivered to the Representatives you on or before the date hereof, shall be in full force and effect on the Closing Date.
(j) The Operative Agreements shall have been executed and delivered by the Company Entities party thereto and shall be in full force and effect on such date.
(k) . The several obligations of the Underwriters to purchase Additional Shares hereunder are subject to the delivery to the Representatives 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 Xxxxxxxx & Xxxxx 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 & Xxxxxx L.L.P., 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(d) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Deloitte, 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 three business days prior to such Option Closing Date;
(v) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Von Gonten, independent reserves engineers, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(h) hereof; and
(vi) such other documents as the Representatives you may reasonably request with respect to the good standing of the Company EntitiesCompany, 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 Additional Shares.
Appears in 1 contract
Samples: Underwriting Agreement (NightHawk Radiology 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 [●] [a.m./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 Company's securities of any of the Company Entities by any “"nationally recognized statistical rating organization,” ", as such term is defined in Section 3(a)(62for purposes of Rule 436(g)(2) of 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 Entitiesand its subsidiaries, taken as a whole, from that set forth in the Time Prospectus (exclusive of Sale Prospectus any amendments or supplements thereto subsequent to the date of this Agreement) that, in the Representatives’ your judgment, is material and adverse and that makes it, in the Representatives’ your judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Representatives Underwriters shall have received on the Closing Date a certificatecertificate from the Company, dated the Closing Date, addressed to the Underwriters Date and signed by an executive officer of the Company, to the effect set forth in Section 6(a5(a)(i) above and to the effect that the representations and warranties of the Company Parties contained in this Agreement are true and correct as of the Closing Date and that the Company Parties have 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 Representatives Underwriters shall have received on the Closing Date an opinion of Xxxxxxxx Cravath, Swaine & Xxxxx LLPXxxxx, outside counsel for the Company, dated the Closing Date and addressed Date, to the effect that:
(i) based solely on a certificate of good standing from the Secretary of State of the State of Delaware, the Company has been duly incorporated, and is validly existing and in good standing under the laws of the State of Delaware, with full corporate power and authority to own its property and to conduct its business as described in the Prospectus;
(ii) the authorized capital stock of the Company conforms as to legal matters to the description thereof contained in the Prospectus under the caption "Description of Capital Stock";
(iii) the shares of Common Stock outstanding prior to the issuance of the Shares have been duly authorized and are validly issued, fully paid and nonassessable;
(iv) 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 nonassessable, and the issuance of such Shares will not be subject to any statutory, or to such counsel's knowledge, contractual preemptive 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 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 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 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, except such as has been obtained under 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;
(vii) the statements (A) in the Prospectus under the captions "Certain Relationships and Related Transactions", "Certain United States Federal Tax Consequences to Non-United States Holders of Common Stock", "Description of Certain Indebtedness" and "Description of Capital Stock" and (B) in the Registration Statement in Items 14 and 15, in form each case insofar as such statements constitute summaries of the legal matters, documents or proceedings referred to therein, fairly present the information required to be described with respect to such legal matters, documents and substance reasonably satisfactory proceedings and summarize in all material respects the matters referred to therein;
(viii) to such counsel's knowledge, there are no (i) 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 (ii) contracts, indentures, mortgages, loan agreements, notes, leases or other documents that are required to be described in the Registration Statement or the Prospectus or to be filed as exhibits to the RepresentativesRegistration Statement that are not described or filed as required;
(ix) to such counsel's knowledge, substantially there are no statutes or regulations (other than federal, state or local telecommunications statutes or regulations as to which such counsel need express no opinion) that are required to be described in the form attached hereto Registration Statement or the Prospectus that are not described as Exhibit C.required;
(x) 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;
(xi) the Merger Agreement has been duly authorized, executed and delivered by TWT LLC, TWT Inc. and the Company, and constitutes a valid and binding agreement of each of TWT LLC, TWT Inc. and the Company, enforceable against each of them in accordance with its terms (subject to applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and other similar laws affecting creditors' rights generally and general principles of equity including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, regardless of whether in a proceeding in equity or at law); and
(xii) the Stockholders Agreement has been duly authorized, executed and delivered by the Company, and constitutes a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject to applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and other similar laws affecting creditors' rights generally and general principles of equity including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, regardless of whether in a proceeding in equity or at law).
(d) The Representatives Underwriters shall have received on the Closing Date an opinion a statement of Xxxxxx Cravath, Swaine & Xxxxxx L.L.P., counsel for the Underwriters, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives. With respect to Sections 6(c) and 6(d) above, Xxxxxxxx & Xxxxx LLP and Xxxxxx & Xxxxxx L.L.P. 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 Xxxxxxxx & Xxxxx LLP described in Section 6(c) above shall be rendered to the Underwriters at the request of the Company Parties and shall so state therein.
(e) The Representatives shall have received from Deloitte a “comfort letter” (the “initial comfort letter”) dated as of the date hereof and addressed to the Underwriters, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the most recent Time of Sale Prospectus, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(f) The Representatives shall have received from Deloitte a “bring-down comfort letter” (the “bring-down comfort letter”) dated as of the Closing Date or the Option Closing Date, as the case may be, and addressed to the Underwriters, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the Closing Date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter, and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(g) The Representatives shall have received from Von Gonten a letter (the “Initial Expert Letter”), dated as of the date hereof, in form and substance satisfactory to the Representatives, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offerings.
(h) The Representatives shall have received from Von Gonten a subsequent letter, dated as of the Closing Date or the Option Closing Date, as the case may be, in form and substance satisfactory to the Representatives, which such letter shall cover the period from the Initial Expert Letter to the Closing Date or the Option Closing Date, as the case may be, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offerings.
(i) The “lock-up” agreements, each substantially in the form of Exhibit A hereto, between the Representatives and those certain stockholders, officers and directors of the Company named in Schedule IV hereto relating to sales and certain other dispositions of shares of stock of the Company or certain other securities, delivered to the Representatives on or before the date hereof, shall be in full force and effect on the Closing Date.
(j) The Operative Agreements shall have been executed and delivered by the Company Entities party thereto and shall be in full force and effect on such date.
(k) The several obligations of the Underwriters to purchase Additional Shares hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate, dated the Option Closing Date and signed by an executive officer of the Company, confirming that the certificate delivered on the Closing Date pursuant to Section 6(b) hereof remains true and correct as of such Option Closing Date;
(ii) an opinion of Xxxxxxxx & Xxxxx LLPXxxxx, outside counsel for the Company, dated the Option Closing Date, relating to the Additional Shares effect that: Although such counsel has made certain inquiries and investigations in connection with the preparation of the Registration Statement and the Prospectus, the limitations inherent in the role of outside counsel are such that such counsel cannot and does not assume responsibility for the accuracy or completeness of the statements made in the Registration Statement and Prospectus, except in so far as such statements relate to be purchased on such Option Closing Date counsel and otherwise except to the same effect as the extent set forth in paragraph (vii) of such counsel's opinion required by Section 6(c) hereof;
(iii) an opinion of Xxxxxx & Xxxxxx L.L.P., counsel for the Underwriters, to you dated the Option Closing Date, relating . Subject to the Additional Shares to be purchased on foregoing, such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(d) hereof;
(iv) a letter dated the Option Closing Date, counsel hereby advises you that such counsel's work in form and substance satisfactory to the Representatives, from Deloitte, independent public accountants, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(f) hereof; provided connection with this matter did not disclose any information that the letter delivered on the Option Closing Date shall use a “cut-off date” not earlier than three business days prior to gave such Option Closing Date;
(v) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Von Gonten, independent reserves engineers, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(h) hereof; and
(vi) such other documents as the Representatives may reasonably request with respect to the good standing of the Company Entities, 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 Additional Shares.counsel
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 an Applicable Closing Date are subject to the condition that the Registration Statement shall have become effective not later than [●] [a.m./p.m.] 5:00 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 an Applicable 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 the Company Entities its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) 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 Entitiesand its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus that, in the Representatives’ your judgment, is material and adverse and that makes it, in the Representatives’ your judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Representatives Underwriters shall have received on the an Applicable Closing Date a certificate, dated the such Applicable Closing Date, addressed to the Underwriters Date and signed by an executive officer of the Company, to the effect set forth in Section 6(a5(a)(i) above and to the effect that the representations and warranties of the Company Parties contained in this Agreement are true and correct as of the such Applicable Closing Date and that the Company Parties have 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 Applicable 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 Representatives Underwriters shall have received on the an Applicable Closing Date an opinion of Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxx LLPXxxxxx, Professional Corporation (“WSGR”) outside counsel for the Company, dated such Applicable Closing Date, including the Closing Date and addressed to the Underwriters, opinions set forth in form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as Exhibit C.Annex I hereto.
(d) The Representatives Underwriters shall have received on the an Applicable Closing Date an opinion of Xxxxxx Xxxxx Xxxx & Xxxxxx L.L.P.Xxxxxxxx LLP, counsel for the Underwriters, dated the an Applicable Closing Date and addressed to the UnderwritersDate, in form and substance reasonably satisfactory to the Representatives. With respect to Sections 6(c) and 6(d) above, Xxxxxxxx & Xxxxx LLP and Xxxxxx & Xxxxxx L.L.P. 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 covering such matters as specified. The opinion of Xxxxxxxx & Xxxxx LLP described in Section 6(c) above shall be rendered to the Underwriters at the request of the Company Parties and shall so state thereinmay reasonably request.
(e) The Representatives Underwriters shall have received from Deloitte a “comfort letter” (the “initial comfort letter”) dated as received, on each of the date hereof and addressed to the Underwritersan Applicable Closing Date, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of a letter dated the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the most recent Time of Sale Prospectus, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(f) The Representatives shall have received from Deloitte a “bring-down comfort letter” (the “bring-down comfort letter”) dated as of the Closing Date or the Option Closing Date, as the case may be, and addressed to the Underwriters, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the Closing Date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter, and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(g) The Representatives shall have received from Von Gonten a letter (the “Initial Expert Letter”), dated as of the date hereof, in form and substance satisfactory to the Representatives, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offerings.
(h) The Representatives shall have received from Von Gonten a subsequent letter, dated as of the Closing Date or the Option Applicable Closing Date, as the case may be, in form and substance satisfactory to the RepresentativesUnderwriters, which such letter shall cover from PricewaterhouseCoopers LLP, an independent registered public accounting firm, containing statements and information of the period from the Initial Expert Letter type ordinarily included in accountants’ “comfort letters” to the Closing Date or the Option Closing Date, as the case may be, stating the conclusions and findings of such firm underwriters with respect to reserve the financial statements and other operational certain financial information contained in the Registration Statement, the Time of Sale Prospectus and other matters as is customary the Prospectus; provided that the letter delivered on an Applicable Closing Date shall use a “cut-off date” not earlier than three days prior to underwriters in connection with registered public offeringsan Applicable Closing Date.
(if) The “lock-up” agreements, each substantially in the form of Exhibit A hereto, between the Representatives you and those certain stockholders, officers and directors of the Company named in Schedule IV hereto relating to sales and certain other dispositions of shares of stock of the Company Common Stock or certain other securities, delivered to the Representatives you on or before the date hereof, shall be in full force and effect on the an Applicable Closing Date.
(j) The Operative Agreements shall have been executed and delivered by the Company Entities party thereto and shall be in full force and effect on such date.
(k) . The several obligations of the Underwriters to purchase Additional Shares hereunder are subject to the delivery to the Representatives you on the applicable Option an Applicable 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 Xxxxxxxx & Xxxxx 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 & Xxxxxx L.L.P., 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(d) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Deloitte, 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 three business days prior to such Option Closing Date;
(v) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Von Gonten, independent reserves engineers, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(h) hereof; and
(vi) such other documents as the Representatives you may reasonably request with respect to the good standing of the Company EntitiesCompany, the due authorization and issuance of the Additional Shares to be sold on such Option Applicable Closing Date and other matters related to the issuance of such Additional Shares.
Appears in 1 contract
Samples: Underwriting Agreement (Splunk Inc)
Conditions to the Underwriters’ Obligations. The obligations of the Company and the Firm Selling Stockholders 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 [●] [a.m./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 to any of the securities of the Company or any of the Company Entities its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) 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 Entitiesand 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 the Representatives’ your judgment, is material and adverse and that makes it, in the Representatives’ your judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Representatives Underwriters shall have received on the Closing Date a certificate, dated the Closing Date, addressed to the Underwriters Date and signed by an executive officer of the Company, to the effect set forth in Section 6(a6(a)(i) above and to the effect that the representations and warranties of the Company Parties contained in this Agreement are true and correct as of the Closing Date and that the Company Parties have 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 Representatives Underwriters shall have received on the Closing Date an opinion of Xxxxxxxx & Xxxxx DLA Piper LLP, outside counsel for the Company, each dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to the RepresentativesDate, substantially in the form attached hereto as Exhibit C.A hereto.
(d) The Representatives Underwriters shall have received on the Closing Date, with respect to each Selling Stockholder, an opinion of Xxxxxxx Xxxxxx Xxxxxx & Dodge LLP, counsel for the Selling Stockholders, dated the Closing Date, substantially in the form attached as Exhibit B hereto.
(e) The Underwriters shall have received on the Closing Date opinion letters of (i) Xxxx Xxxxx LLP, outside UK counsel for the Company, (ii) City-Yuwa Partners, outside Japanese counsel for the Company , dated the Closing Date, substantially in the forms attached as Exhibit C-1 and C-2, respectively, hereto.
(f) The Underwriters shall have received on the Closing Date opinion letters of (i) Xxxx Xxxxx LLP, outside UK regulatory counsel for the Company, (ii) City-Yuwa Partners, outside Japanese regulatory counsel for the Company, (iii) Freehills, outside Australian regulatory counsel for the Company, (iv) Global Law Office, outside Chinese regulatory counsel for the Company, (v) Xxxxx Xxxxx JSM, outside Hong Kong regulatory counsel for the Company, (vi) XxXxxxxx Xxxxxxxx LLP, outside Canadian regulatory counsel for the Company and (vii) Xxxxxx Xxxxxx Rosenman LLP, outside US regulatory counsel for the Company, each dated the Closing Date, and each substantially in the forms attached as Exhibits D-1 through D-7, respectively, hereto.
(g) The Underwriters shall have received on the Closing Date an opinion and a Rule 10b-5 disclosure letter of Xxxxxx Xxxxx Xxxx & Xxxxxx L.L.P.Xxxxxxxx LLP, counsel for the Underwriters, each dated the Closing Date and addressed to Date, covering such matters as requested by the Underwriters, in form and substance reasonably satisfactory to the Representatives. With respect to Sections Section 6(c) and 6(d) above, Xxxxxxxx & Xxxxx DLA Piper LLP and Xxxxxx with respect to Section 6(g) above, Xxxxx Xxxx & Xxxxxx L.L.P. Xxxxxxxx LLP, may state that their opinions and beliefs are based upon their participation in the preparation of the Registration Statement, the Time of Sale Prospectus and the Prospectus and any amendments or supplements thereto and review and discussion of the contents thereof, but are without independent check or verification, except as specified. With respect to Section 6(d) above, Xxxxxxx Xxxxxx Xxxxxx & Dodge LLP may rely upon an opinion or opinions of counsel for any Selling Stockholder and, with respect to factual matters and to the extent such 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 reasonably satisfactory to your counsel, (B) a copy of each opinion so relied upon is delivered to you and is in form and substance reasonably 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) Xxxxxxx Xxxxxx Xxxxxx & Dodge LLP shall state in their opinion that they are justified in relying on each such other opinion. The opinion opinions of Xxxxxxxx DLA Piper LLP, Xxxxxxx Xxxxxx Xxxxxx & Xxxxx Dodge LLP and the various local and regulatory counsels for the Company described in Section Sections 6(c), 6(d), 6(e) and 6(f) above (and any opinions of counsel for any Selling Stockholders referred to in the immediately preceding paragraph) shall be rendered to the Underwriters at the request of the Company Parties or one or more of the Selling Stockholders, as the case may be, and shall so state therein.
(eh) The Representatives Underwriters shall have received from Deloitte a “comfort letter” (the “initial comfort letter”) dated as received, on each of the date hereof and addressed to the UnderwritersClosing Date, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of a letter dated the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the most recent Time of Sale Prospectus, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(f) The Representatives shall have received from Deloitte a “bring-down comfort letter” (the “bring-down comfort letter”) dated as of the Closing Date or the Option Closing Date, as the case may be, and addressed to the Underwriters, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the Closing Date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter, and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(g) The Representatives shall have received from Von Gonten a letter (the “Initial Expert Letter”), dated as of the date hereof, in form and substance satisfactory to the Representatives, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offerings.
(h) The Representatives shall have received from Von Gonten a subsequent letter, dated as of the Closing Date or the Option Closing Date, as the case may be, in form and substance satisfactory to the RepresentativesUnderwriters, which such 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 shall cover the period from the Initial Expert Letter to delivered on the Closing Date or shall use a “cut-off date” not earlier than the Option Closing Date, as the case may be, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offeringsdate hereof.
(i) The “lock-up” agreements, each substantially in the form of Exhibit A E hereto, between you and the Representatives and those certain stockholders, officers and directors of the Company named in Schedule IV hereto listed on Exhibit F hereto, relating to sales and certain other dispositions of shares of stock of the Company Common Stock or certain other securities, delivered to the Representatives you on or before the date hereof, shall be in full force and effect on the Closing Date.
(j) The Operative Agreements shall have been executed and delivered by the Company Entities party thereto and shall be in full force and effect on such date.
(k) . The several obligations of the Underwriters to purchase Additional Shares hereunder are subject to the delivery to the Representatives 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 Xxxxxxxx & Xxxxx 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 & Xxxxxx L.L.P., 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(d) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Deloitte, 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 three business days prior to such Option Closing Date;
(v) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Von Gonten, independent reserves engineers, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(h) hereof; and
(vi) such other documents as the Representatives you may reasonably request with respect to the good standing of the Company EntitiesCompany, the due authorization and issuance of the Additional Shares to be sold on such Option Closing Date and other matters related to the issuance sale of such Additional Shares.
Appears in 1 contract
Samples: Underwriting Agreement (GAIN Capital Holdings, Inc.)
Conditions to the Underwriters’ Obligations. The obligations of the Company 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 [●[ ] [a.m./p.m.] 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 the Company Entities its subsidiaries, parents or affiliates, by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) 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 Entitiesand its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus that, in the Representatives’ your judgment, is material and adverse and that makes it, in the Representatives’ your judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Representatives Underwriters shall have received on the Closing Date a certificate, dated the Closing Date, addressed to the Underwriters Date and signed by an executive officer of the Company, to the effect set forth in Section 6(a6(a)(i) above and to the effect that the representations and warranties of the Company Parties contained in this Agreement are true and correct as of the Closing Date and that the Company Parties have 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 Representatives Underwriters shall have received on the Closing Date an opinion and negative assurance letter of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx & Xxxxx LLP, outside counsel for the Company, dated the Closing Date and addressed to the UnderwritersDate, in form substantially the forms as set forth in Exhibits A and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as Exhibit C.B hereto.
(d) The Underwriters shall have received on the Closing Date an opinion of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, counsel for the Selling Shareholders, dated the Closing Date, in substantially the form as set forth in Exhibit C hereto.
(e) The Underwriters shall have received on the Closing Date such additional opinion letters with respect to certain Selling Shareholders as previously agreed to by the parties to be delivered by appropriate counsel in such previously mutually agreed form between such counsel and Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters.
(f) The Underwriters shall have received on the Closing Date an opinion and negative assurance letter of Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, dated the Closing Date, in the form mutually agreed upon between the Representatives and Xxxxx Xxxx & Xxxxxxxx LLP.
(g) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx Westwood & Xxxxxx L.L.P.Riegels, counsel for British Virgin Islands Counsel to the UnderwritersCompany, dated the Closing Date and addressed to the UnderwritersDate, in substantially the form and substance reasonably satisfactory to the Representatives. With respect to Sections 6(c) and 6(d) above, Xxxxxxxx & Xxxxx LLP and Xxxxxx & Xxxxxx L.L.P. 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 Xxxxxxxx & Xxxxx LLP described in Section 6(c) above shall be rendered to the Underwriters at the request of the Company Parties and shall so state therein.
(e) The Representatives shall have received from Deloitte a “comfort letter” (the “initial comfort letter”) dated as of the date hereof and addressed to the Underwriters, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the most recent Time of Sale Prospectus, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(f) The Representatives shall have received from Deloitte a “bring-down comfort letter” (the “bring-down comfort letter”) dated as of the Closing Date or the Option Closing Date, as the case may be, and addressed to the Underwriters, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the Closing Date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter, and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(g) The Representatives shall have received from Von Gonten a letter (the “Initial Expert Letter”), dated as of the date hereof, in form and substance satisfactory to the Representatives, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offeringsExhibit D hereto.
(h) The Representatives Underwriters shall have received from Von Gonten a subsequent letterreceived, dated as on each of the date hereof and the Closing Date Date, a letter dated the date hereof or the Option Closing Date, as the case may be, in form and substance reasonably satisfactory to the RepresentativesUnderwriters, which such from 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 shall cover the period from the Initial Expert Letter to delivered on the Closing Date or shall use a “cut-off date” not earlier than the Option Closing Date, as the case may be, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offeringsdate hereof.
(i) The “lock-up” agreements, each substantially in the form of Exhibit A E hereto, between the Representatives you and those certain stockholderssecurity holders, officers and directors of the Company named in Schedule IV hereto relating to sales and certain other dispositions of shares of stock of the Company Ordinary Shares or certain other securities, delivered to the Representatives you on or before the date hereof, shall be in full force and effect on the Closing Date.
(j) The Operative Agreements Each Underwriter shall have been executed and delivered by received the Company Entities party thereto and shall be certificate described in full force and effect on such dateSection 7(i), if applicable, from the Company.
(k) Each Underwriter shall have received a Form W-9 or Form W-8, as described in Section 8, from each Selling Shareholder.
(l) The Underwriters shall have received a certificate in the form attached as Exhibit F hereto, dated as of each of the date hereof and the Closing Date, of the Chief Financial Officer of the Company. The several obligations of the Underwriters to purchase Additional Shares hereunder are subject to the delivery to the Representatives 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 Xxxxxxxx & Xxxxx 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 & Xxxxxx L.L.P., 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(d) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Deloitte, 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 three business days prior to such Option Closing Date;
(v) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Von Gonten, independent reserves engineers, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(h) hereof; and
(vi) such other documents as the Representatives you may reasonably request with respect to the good standing of the Company EntitiesCompany, 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 Additional Shares.
Appears in 1 contract
Conditions to the Underwriters’ Obligations. The obligations of the Company to sell the Shares to the Underwriters and the several obligations of the Underwriters to purchase and pay for the Shares on the Closing Date are subject to the condition that the Registration Statement shall have become effective not later than [●] [a.m./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 the Company Entities its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined in for purposes of Section 3(a)(62) 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 Entitiesand 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 the Representatives’ judgmentjudgment of the Representative, is material and adverse and that makes it, in the Representatives’ judgmentjudgment of the Representative, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus; and
(iii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the business or operations of the Adviser from that set forth in the Time of Sale Prospectus as of the date of this Agreement that, in the judgment of the Representative, is material and adverse and that makes it, in the judgment of the Representative, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Representatives Underwriters shall have received on the Closing Date a certificate, dated the Closing Date, addressed to the Underwriters Date and signed by an executive officer of the Company, to in the effect set forth in Section 6(aform attached as Exhibit C hereto.
(ii) above The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Adviser, to the effect that the representations and warranties of the Company Parties Adviser contained in this Agreement are true and correct as of the Closing Date and that the Company Parties have Adviser 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 certificates may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Representatives Underwriters shall have received on the Closing Date Date:
(i) an opinion and negative assurance letter of Xxxxxxxx & Xxxxx Dechert LLP, outside counsel for the Company, dated the Closing Date and addressed Date, to the Underwriters, effect set forth in form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as Exhibit C.A hereto; and
(dii) The Representatives shall have received on the Closing Date an opinion and negative assurance letter of Xxxxxx Ropes & Xxxxxx L.L.P.Gray LLP, counsel for the Underwriters, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives. With respect to Sections 6(c) and 6(d) above, Xxxxxxxx & Xxxxx LLP and Xxxxxx & Xxxxxx L.L.P. 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 specifiedDate. The opinion of Xxxxxxxx & Xxxxx Dechert LLP described in Section 6(cclause (c)(i) above shall be rendered to the Underwriters at the request of the Company Parties and shall so state therein.
(e) The Representatives shall have received from Deloitte a “comfort letter” (the “initial comfort letter”) dated as of the date hereof and addressed to the Underwriters, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the most recent Time of Sale Prospectus, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(f) The Representatives shall have received from Deloitte a “bring-down comfort letter” (the “bring-down comfort letter”) dated as of the Closing Date or the Option Closing Date, as the case may be, and addressed to the Underwriters, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the Closing Date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter, and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(g) The Representatives shall have received from Von Gonten a letter (the “Initial Expert Letter”), dated as of the date hereof, in form and substance satisfactory to the Representatives, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offerings.
(h) The Representatives shall have received from Von Gonten a subsequent letter, dated as of the Closing Date or the Option Closing Date, as the case may be, in form and substance satisfactory to the Representatives, which such letter shall cover the period from the Initial Expert Letter to the Closing Date or the Option Closing Date, as the case may be, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offerings.
(i) The “lock-up” agreements, each substantially in the form of Exhibit A hereto, between the Representatives and those certain stockholders, officers and directors of the Company named in Schedule IV hereto relating to sales and certain other dispositions of shares of stock of the Company or certain other securities, delivered to the Representatives on or before the date hereof, shall be in full force and effect on the Closing Date.
(j) The Operative Agreements shall have been executed and delivered by the Company Entities party thereto and shall be in full force and effect on such date.
(k) The several obligations of the Underwriters to purchase Additional Shares hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate, dated the Option Closing Date and signed by an executive officer of the Company, confirming that the certificate delivered on the Closing Date pursuant to Section 6(b) hereof remains true and correct as of such Option Closing Date;
(ii) an opinion of Xxxxxxxx & Xxxxx 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 & Xxxxxx L.L.P., 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(d) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Deloitte, 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 three business days prior to such Option Closing Date;
(v) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Von Gonten, independent reserves engineers, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(h) hereof; and
(vi) such other documents as the Representatives may reasonably request with respect to the good standing of the Company Entities, 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 Additional Shares.
Appears in 1 contract
Samples: Underwriting Agreement (Horizon Technology Finance 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 the Registration Statement shall have become effective not later than [●] [a.m./p.m.] (4:00 p.m., New York City time) 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) 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 the Company Entities its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of 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 Entitiesand its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus that, in the Representatives’ judgment, is material and adverse and that makes it, in the Representatives’ judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus; and
(iv) 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.
(b) The Representatives Underwriters shall have received on the Closing Date a certificate, dated the Closing Date, addressed to the Underwriters Date and signed by an executive officer of the Company, to the effect set forth in Section 6(a5(a)(ii) above and to the effect that the representations and warranties of the Company Parties contained in this Agreement are true and correct as of the Closing Date and that the Company Parties have 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 Representatives Underwriters shall have received on the Closing Date an opinion and negative assurance letter of Xxxxxxxx & Xxxxx Xxxxxxx Procter LLP, outside counsel for the Company, dated the Closing Date and addressed to the UnderwritersDate, in form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as Exhibit C.Underwriters.
(d) The Representatives Underwriters shall have received on the Closing Date an opinion of Xxxxxxx Xxxx & Xxxxxxx Limited, outside counsel for the Company, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriters.
(e) The Underwriters shall have received on the Closing Date an opinion of each of Xxxxxx LLP; Xxxxxx Xxxxxxx Xxxxx & Xxxxxx L.L.P.Xxxxxxxxxxx LLP; Fish & Xxxxxxxxxx; and Wolf, Greenfield & Sacks, P.C., intellectual property counsel for the Company, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriters.
(f) The Underwriters shall have received on the Closing Date an opinion and negative assurance letter of Ropes & Xxxx LLP, counsel for the Underwriters, dated the Closing Date and addressed to the UnderwritersDate, in form and substance reasonably satisfactory to the RepresentativesUnderwriters. With respect to Sections 6(c5(c) and 6(d5(f) above, Xxxxxxxx & Xxxxx Xxxxxxx Procter LLP and Xxxxxx Ropes & Xxxxxx L.L.P. Xxxx LLP, respectively, may state that their opinions and beliefs are based upon their participation in the preparation of the Registration Statement, the Basic Prospectus, 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 Xxxxxxxx & Xxxxx Xxxxxxx Procter LLP described in Section 6(c5(c) above shall be rendered to the Underwriters at the request of the Company Parties and shall so state therein.
(eg) The Representatives Underwriters shall have received from Deloitte a “comfort letter” (the “initial comfort letter”) dated as received, on each of the date hereof and addressed to the UnderwritersClosing Date, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of a letter dated the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the most recent Time of Sale Prospectus, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(f) The Representatives shall have received from Deloitte a “bring-down comfort letter” (the “bring-down comfort letter”) dated as of the Closing Date or the Option Closing Date, as the case may be, and addressed to the Underwriters, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the Closing Date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter, and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(g) The Representatives shall have received from Von Gonten a letter (the “Initial Expert Letter”), dated as of the date hereof, in form and substance satisfactory to the Representatives, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offerings.
(h) The Representatives shall have received from Von Gonten a subsequent letter, dated as of the Closing Date or the Option Closing Date, as the case may be, in form and substance reasonably satisfactory to the RepresentativesUnderwriters, which such 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 contained in the Registration Statement, the Basic Prospectus, the Time of Sale Prospectus and the Prospectus; provided that the letter shall cover the period from the Initial Expert Letter to delivered on the Closing Date or shall use a “cut-off date” not earlier than the Option Closing Date, as the case may be, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offeringsdate hereof.
(ih) The “lock-up” up agreements, each substantially in the form of Exhibit A hereto, between among the Representatives and those the officers, directors and certain stockholders, officers and directors shareholders of the Company named in Schedule IV hereto relating to restrictions on sales and certain other dispositions of shares of stock of the Company Common Stock or certain other securities, delivered to 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 Underwriters shall have received, on each of the date hereof and the Closing Date, a certificate of the Chief Financial Officer of the Company certifying as to the accuracy of certain financial information included in the Registration Statement, the Basic Prospectus, the Time of Sale Prospectus and the Prospectus, in form and substance reasonably satisfactory to the Underwriters.
(j) The Operative Agreements Underwriters shall have been executed received, on each of the date hereof and delivered by at the Company Entities party thereto Closing Date, such other documents as the Representatives may reasonably request with respect to the good standing of the Company, the due authorization and shall issuance of the Shares to be in full force sold on the Closing Date and effect on such dateother matters related to the issuance of the Shares.
(k) The several obligations of the Underwriters to purchase Additional Shares hereunder are subject to the delivery to 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(b5(b) hereof remains true and correct as of such Option Closing Date;
(ii) an opinion and negative assurance letter of Xxxxxxxx Xxxxxxx 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 or opinions required by Section 5(c) hereof;
(iii) an opinion of Xxxxxxx Xxxx & Xxxxx LLPXxxxxxx Limited, 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(c5(d) hereof;
(iiiiv) an opinion of each of Xxxxxx LLP; Xxxxxx Xxxxxxx Xxxxx & Xxxxxx L.L.P.Xxxxxxxxxxx LLP; Fish & Xxxxxxxxxx; and Wolf, Greenfield & Sacks, P.C., 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) an opinion and negative assurance letter 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 6(d5(f) hereof;
(ivvi) a letter dated the Option Closing Date, in form and substance satisfactory to the RepresentativesUnderwriters, from DeloitteErnst & Young LLP, independent public accountants, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(f5(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;
(vvii) a letter certificate dated the Option Closing Date, in form Date and substance satisfactory signed by the Chief Financial Officer of the Company certifying as to the Representatives, from Von Gonten, independent reserves engineers, substantially accuracy of certain financial information contained in the same form and substance Prospectus as the letter furnished to the Underwriters pursuant to Section 6(h) hereofof such Option Closing Date; and
(viviii) such other documents as the Representatives may reasonably request with respect to the good standing of the Company EntitiesCompany, 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 Additional Shares.
Appears in 1 contract
Conditions to the Underwriters’ Obligations. The obligations of the Company to sell the Shares to the Underwriters and the several obligations of the Underwriters to purchase and pay for the Shares on the Closing Date are subject to the condition that the Registration Statement shall have become effective not later than [●] [a.m./p.m.] (New 5:30 p.m.(New York City time) on the date hereof. The several obligations of the Underwriters to purchase and pay for the Shares on the Closing Date 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 any of the Company Entities by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) 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 and Affiliated Entities, taken as a whole, from that set forth in the Time of Sale Prospectus and the Prospectus as of the date of this Agreement that, in the judgment of the Representatives’ judgment, is material and adverse and that makes it, in the judgment of the Representatives’ judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus and the Prospectus.
(b) The Representatives representations and warranties of the Company contained in this Agreement and any certificates delivered pursuant to this Agreement shall be true and correct as of the date hereof, the Closing Date, and the Company shall have performed all of their respective obligations under this Agreement theretofore to be performed.
(c) The Underwriters shall have received on the Closing Date Date, a certificate, dated the Closing Datesuch date, addressed to the Underwriters and signed by an a duly authorized executive officer of the Company, (i) to the effect set forth in Section 6(a5(a) above and to the effect that the representations and warranties of the Company Parties contained in this Agreement are true and correct as of the Closing Date Date, and that the Company Parties have 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 such date, (and the Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened) and (ii) with respect to such other matters as the Representatives may reasonably require.
(cd) The Representatives Underwriters shall have received on the Closing Date Date, a certificate in form and substance reasonably satisfactory to the Underwriters, dated such date and signed by the chief financial officer of the Company, in which such officer shall state that certain operating data and financial figures contained in the Registration Statement, the Time of Sale Prospectus and the Prospectus, have been derived from and verified against the Company’s accounting and business records, and he or she has no reason to believe that such data is not true or accurate.
(e) The Underwriters shall have received on the Closing Date, an opinion and negative assurance letter of Xxxxxxxx & Xxxxx DLA Piper UK LLP, outside U.S. counsel for the Company, dated the Closing Date Date, in form and addressed substance reasonably satisfactory to the Underwriters.
(f) The Underwriters shall have received on the Closing Date, an opinion of Xxxxxx and Xxxxxx (Hong Kong) LLP, Cayman Islands counsel for the Company, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriters.
(g) The Company shall have received on the Closing Date, an opinion of Jingtian & Gongcheng Law Offices, PRC counsel for the Company, dated the Closing Date, a copy of which shall have been provided to the Underwriters, in form and substance reasonably satisfactory to the RepresentativesUnderwriters. At the request of the Company, substantially in the form attached hereto as Exhibit C.opinions of counsel for the Company described above (except for the opinion of the PRC counsel for the Company) shall be addressed to the Underwriters and shall so state therein.
(dh) The Representatives Underwriters shall have received on the Closing Date Date, an opinion and negative assurance letter of Xxxxxx Sheppard, Mullin, Xxxxxxx & Xxxxxx L.L.P., Hampton LLP counsel for the Underwriters, dated the Closing Date Date, in form and addressed substance satisfactory to the Underwriters.
(i) The Underwriters shall have received on the Closing Date, an opinion of PacGate Law Group counsel for the Underwriters, dated the Closing Date, in form and substance satisfactory to the Underwriters.
(j) The Underwriters shall have received on the Closing Date, an opinion of Xxxxxxx, Xxxxxxx & Associates LLP, counsel for the Depositary, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives. With Underwriters.
(k) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated such date, in form and substance satisfactory to the Underwriters, from Xxxxxxxx LLP, independent public accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to the Underwriters with respect to Sections 6(c) the financial statements and 6(d) above, Xxxxxxxx & Xxxxx LLP and Xxxxxx & Xxxxxx L.L.P. may state that their opinions and beliefs are based upon their participation certain financial information contained 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 Prospectus; provided that the contents thereof, but are without independent check or verification, except as specified. The opinion of Xxxxxxxx & Xxxxx LLP described in Section 6(c) above letter shall be rendered use a “cut-off date” not earlier than three business days prior to the Underwriters at the request date of the Company Parties and shall so state thereinsuch letter.
(el) The Representatives shall have received from Deloitte a “comfort letter” (the “initial comfort letter”) dated as of the date hereof and addressed to the Underwriters, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2Lock-01 of Regulation S-X of the Commission, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the most recent Time of Sale Prospectus, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort lettersUp” to underwriters in connection with registered public offerings.
(f) The Representatives shall have received from Deloitte a “bring-down comfort letter” (the “bring-down comfort letter”) dated as of the Closing Date or the Option Closing Date, as the case may be, and addressed to the Underwriters, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the Closing Date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter, and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(g) The Representatives shall have received from Von Gonten a letter (the “Initial Expert Letter”), dated as of the date hereof, in form and substance satisfactory to the Representatives, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offerings.
(h) The Representatives shall have received from Von Gonten a subsequent letter, dated as of the Closing Date or the Option Closing Date, as the case may be, in form and substance satisfactory to the Representatives, which such letter shall cover the period from the Initial Expert Letter to the Closing Date or the Option Closing Date, as the case may be, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offerings.
(i) The “lock-up” agreementsLetters, each substantially in the form of Exhibit A hereto, between executed by the Representatives individuals and those certain stockholders, officers and directors of the Company named in entities listed on Schedule IV hereto relating to sales and certain other dispositions of shares of stock of the Company Shares or certain other securities, delivered to the Representatives on or before the date hereof, shall be in full force and effect on the Closing Date.
(jm) The Operative Agreements Company and the Depositary shall have been executed and delivered by the Company Entities party thereto Deposit Agreement 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 Shares and the issuance of the American Depositary Shares representing such dateShares in accordance with the Deposit Agreement.
(kn) The several obligations of the Underwriters to purchase Additional Shares hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate, dated the Option Closing Date and signed by an executive officer of the Company, confirming that the certificate delivered on the Closing Date pursuant to Section 6(b) hereof remains true and correct as of such Option Closing Date;
(ii) an opinion of Xxxxxxxx & Xxxxx LLP, outside counsel for the Company, dated the Option Closing Date, relating to the Additional Shares Depositary shall have furnished or caused 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 & Xxxxxx L.L.P., 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(d) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Deloitte, 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 three business days prior to such Option Closing Date;
(v) a letter dated the Option Closing Date, in form and substance certificate satisfactory to the Representatives, from Von Gonten, independent reserves engineers, substantially in the same form and substance as the letter furnished Representatives or one of its authorized officers with respect to the Underwriters deposit with it of the Shares against issuance of the American Depositary Shares, the execution, issuance, countersignature and delivery of the American Depositary Shares pursuant to Section 6(h) hereof; and
(vi) the Deposit Agreement and such other documents matters related thereto as the Representatives may reasonably request request.
(o) The American Depositary Shares representing the Shares shall have been approved for listing on the NASDAQ Global Market, subject to only official notice of issuance.
(p) 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.
(q) 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.
(r) 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 or pursuant to Section 8A of the Securities Act shall have been instituted or threatened by the Commission.
(s) FINRA shall not have raised any objection with respect to the good standing fairness or reasonableness of the Company Entitiesunderwriting, or other arrangements of the transactions contemplated hereby.
(t) On the Closing Date, the due authorization 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 Additional Shares as contemplated herein, or in order to be sold on such Option Closing Date evidence the accuracy of any of the representations and other matters related to warranties, or the issuance satisfaction of such Additional Sharesany of the conditions or agreements, herein contained.
Appears in 1 contract
Conditions to the Underwriters’ Obligations. The obligations of the Company to sell the Shares to the Underwriters and the several obligations of the Underwriters to purchase and pay for the Shares on the Closing Date are subject to the condition that the Registration Statement shall have become effective not later than [●] [a.m./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 the Company Entities its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined in for purposes of Section 3(a)(62) 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 Entitiesand 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 the Representatives’ judgmentjudgment of the Representative, is material and adverse and that makes it, in the Representatives’ judgmentjudgment of the Representative, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus; and
(iii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the business or operations of the Adviser from that set forth in the Time of Sale Prospectus as of the date of this Agreement that, in the judgment of the Representative, is material and adverse and that makes it, in the judgment of the Representative, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(bi) The Representatives Underwriters shall have received on the Closing Date a certificate, dated the Closing Date, addressed to the Underwriters Date and signed by an executive officer of the Company, to in the effect set forth in Section 6(aform attached as Exhibit C hereto.
(ii) above The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Adviser, to the effect that the representations and warranties of the Company Parties Adviser contained in this Agreement are true and correct as of the Closing Date and that the Company Parties have Adviser 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 certificates may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Representatives Underwriters shall have received on the Closing Date Date:
(i) an opinion and negative assurance letter of Xxxxxxxx & Xxxxx Dechert LLP, outside counsel for the Company, dated the Closing Date and addressed Date, to the Underwriters, effect set forth in form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as Exhibit C.A hereto; and
(dii) The Representatives shall have received on the Closing Date an opinion and negative assurance letter of Xxxxxx Ropes & Xxxxxx L.L.P.Gxxx LLP, counsel for the Underwriters, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives. With respect to Sections 6(c) and 6(d) above, Xxxxxxxx & Xxxxx LLP and Xxxxxx & Xxxxxx L.L.P. 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 specifiedDate. The opinion of Xxxxxxxx & Xxxxx Dechert LLP described in Section 6(cclause (c)(i) above shall be rendered to the Underwriters at the request of the Company Parties and shall so state therein.
(ed) The Representatives Underwriters shall have received from Deloitte a “comfort letter” (the “initial comfort letter”) dated as received, on each of the date hereof and addressed to the UnderwritersClosing Date, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of a letter dated the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the most recent Time of Sale Prospectus, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(f) The Representatives shall have received from Deloitte a “bring-down comfort letter” (the “bring-down comfort letter”) dated as of the Closing Date or the Option Closing Date, as the case may be, and addressed to the Underwriters, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the Closing Date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter, and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(g) The Representatives shall have received from Von Gonten a letter (the “Initial Expert Letter”), dated as of the date hereof, in form and substance satisfactory to the Representatives, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offerings.
(h) The Representatives shall have received from Von Gonten a subsequent letter, dated as of the Closing Date or the Option Closing Date, as the case may be, in form and substance satisfactory to the RepresentativesUnderwriters, which such from RSM US LLP, independent public accountants 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 shall cover the period from the Initial Expert Letter to delivered on the Closing Date or shall use a “cut-off date” not earlier than the Option Closing Date, as the case may be, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offeringsdate hereof.
(ie) The “lock-up” agreements, each substantially in the form of Exhibit A B hereto, between the Representatives Underwriters and those certain stockholders, officers and directors of the Company named in Schedule IV hereto relating to sales and certain other dispositions of shares of stock of the Company Common Stock or certain other securities, delivered to the Representatives Underwriters on or before the date hereof, shall be in full force and effect on the Closing Date.
(jf) The Operative Agreements Underwriters shall have been executed and delivered by received on the date hereof a letter dated the date hereof of the Chief Financial Officer of the Company Entities party thereto and shall be in full force and effect on such date.
(k) substantially the form of Exhibit C hereto. The several obligations of the Underwriters to purchase Additional Shares hereunder are subject to the delivery to the Representatives Underwriters on the applicable Option Closing Date of the following:
(i) a certificate, dated the Option Closing Date and signed by an executive officer of the Company, 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 Xxxxxxxx & Xxxxx 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 & Xxxxxx L.L.P., 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(d) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Deloitte, 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 three business days prior to such Option Closing Date;
(v) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Von Gonten, independent reserves engineers, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(h) hereof; and
(vi) such other documents as the Representatives Representative may reasonably request with respect to the good standing of the Company EntitiesCompany, the due authorization and issuance of the Additional Shares to be sold on such Option Closing Date Date, the legal opinions and certificates set forth above, and other matters related to the issuance of such Additional Shares.
Appears in 1 contract
Samples: Underwriting Agreement (Horizon Technology Finance Corp)
Conditions to the Underwriters’ Obligations. The respective obligations of the Company to sell Fund and the Shares to the Underwriters Advisers and the several obligations of the Underwriters to purchase and pay for the Shares on the Closing Date hereunder are subject to the condition that the Registration Statement shall have become effective not later than [●] [a.m./p.m.5:30 P.M.] (New York City time) on the date hereof. The several obligations of the Underwriters are subject to the following further conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
Date or, if earlier, the dates as of which information is given in the Registration Statement (iexclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), (1) 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; (2) in the case of the Fund, there shall not have occurred (A) any downgrading, nor shall any notice have been given of any intended change or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, decrease specified in the rating accorded any of the securities of any of the Company Entities by any “nationally recognized statistical rating organization,” as such term is defined letter or letters referred to in Section 3(a)(62paragraph (g) of the Exchange Act; and
this Section 6, or (iiB) 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, properties or operations of the Company EntitiesFund, taken as a wholewhether or not arising from transactions in the ordinary course of business, from that set forth in the Time of Sale Prospectus thatand, (3) in the case of each Adviser, there shall not have occurred (A) any change or decrease specified in the letter or letters referred to in paragraph (g) of this Section 6, or (B) any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business, prospects, properties, operations, management or personnel of each Adviser, whether or not arising from transactions in the ordinary course of business, from that set forth in the Time of Sale Prospectus, the effect of which in any case referred to in clause (2) or (3) above is, in the sole judgment of the Representatives’ judgment, is so material and adverse and that makes it, in the Representatives’ judgment, impracticable or inadvisable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Representatives Underwriters shall have received on the Closing Date a certificatecertificates, dated the Closing Date, addressed to of the Underwriters chief executive officer and signed by chief financial officer (or officers acting in similar capacities) of the Fund and an executive officer of each of the CompanyInvestment Adviser and Western Asset, to the effect set forth in Section 6(aSections 6(a)(1) and 6(a)(2) above and to the effect that the representations and warranties of the Company Parties Fund and the Investment Adviser or the Sub-Advisers, as applicable, contained in this Agreement are true and correct as of the Closing Date Date, and that the Company Parties have Fund and each of the Investment Adviser or the Sub-Advisers, as applicable has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The Each officer signing and delivering such a certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) Each of the Advisers and the Fund shall have performed all of their respective obligations to be performed hereunder on or prior to the Closing Date.
(d) The Representatives Underwriters shall have received on the Closing Date an opinion and negative assurance letter of Xxxxxxxx Simpson Thacher & Xxxxx LLPBaxxxxxx XXX, outside counsel for the Companyxxxnsex xxx xxe Fund, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representativesrepresentatives of the Underwriters, substantially to the effect set forth in Exhibit B hereto. In rendering the opinions described in Section 6(d) above and Exhibit B, as to Maryland law, Simpson Thacher & Baxxxxxx XXX xxx relx xx xxx opinion of Venable LLP, special Xxxxxxnd counsel to the Fund or, for opinions related to matters of Maryland law, such opinions may be rendered by Venable LLP addressex xx xxe Underwriters, in form attached hereto as Exhibit C.and substance reasonably satisfactory to the representatives of the Underwriters.
(de) The Representatives Underwriters shall have received on the Closing Date (i) an opinion and negative assurance letter of the Secretary of the Investment Adviser, to the effect set forth in Exhibit C-1 hereto, (ii) an opinion of Xxxxxx Simpson Thacher & Xxxxxx L.L.P.Baxxxxxx XXX, counsel xxxxxxl for the UnderwritersInvestment Adviser, to the effect set forth in Exhibit C-2 hereto, and (iii) an opinion of the General Counsel of Western Asset for the Sub-Advisers, to the effect set forth in Exhibit C-3 hereto, each dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representativesrepresentatives of the Underwriters.
(f) The Underwriters shall have received on the Closing Date the favorable opinion and negative assurance letter of Clifford Chance US LLP, counsel for the Underwriters, dated the Closing Date, and covering such matters as the Underwriters shall reasonably request. With respect In rendering the opinion described in this Section 6(f), as to Sections 6(c) matters of Maryland law, Clifford Chance may rely on the opinion of Venable LLP and such xxxxxxn of Venable LLP shall exxxxxxxx permit reliance thereon by Clifford Chance for purposes of rendering the foregoing opinion. In rendering the opinions described in Section 6(d) above, Xxxxxxxx as to matters of Maryland law, Simpson Thacher & Xxxxx LLP and Xxxxxx & Xxxxxx L.L.P. 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 Baxxxxxx XXX xxx relx xx xxx opinion of Xxxxxxxx & Xxxxx Venable LLP, so long xx x xopy of such opinion of Venable LLP described in Section 6(c) above shall be rendered to is delivxxxx xx the Underwriters at the request of the Company Parties Representatives and shall so state therein.
(e) The Representatives shall have received from Deloitte a “comfort letter” (the “initial comfort letter”) dated as of the date hereof and addressed to the Underwriters, is in form and substance satisfactory to the Representatives and the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission’ counsel, and (ii) stating, as such opinion of Venable LLP expresslx xxxxxts reliance thereon by Simpson Thacher & Baxxxxxx XXX xxx purxxxxx xx rendering the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the most recent Time of Sale Prospectus, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(f) The Representatives shall have received from Deloitte a “bring-down comfort letter” (the “bring-down comfort letter”) dated as of the Closing Date or the Option Closing Date, as the case may be, and addressed to the Underwriters, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the Closing Date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter, and (iii) confirming in all material respects the conclusions and findings set forth in the initial letterforegoing opinion.
(g) The Representatives shall have received from Von Gonten a letter (the “Initial Expert Letter”), dated as of the date hereof, in form and substance satisfactory to the Representatives, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offerings[RESERVED].
(h) The Representatives Underwriters shall have received from Von Gonten a subsequent letterreceived, dated as on each of the date hereof and the Closing Date Date, a letter dated the date hereof or the Option Closing Date, as the case may be, in form and substance reasonably satisfactory to the RepresentativesUnderwriters, which such from 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 shall cover the period from the Initial Expert Letter to delivered on the Closing Date or shall use a “cut-off date” not earlier than the Option Closing Date, as the case may be, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offeringsdate hereof.
(i) The “lock-up” agreementsAll filings, each substantially applications and proceedings taken by the Fund and the Investment Advisers in connection with the organization and registration of the Fund and the Shares under the Acts and the applicable Rules and Regulations shall be reasonably satisfactory in form of Exhibit A hereto, between and substance to the Representatives and those certain stockholders, officers and directors of counsel for the Company named in Schedule IV hereto relating to sales and certain other dispositions of shares of stock of the Company or certain other securities, delivered to the Representatives on or before the date hereof, shall be in full force and effect on the Closing DateUnderwriters.
(j) The Operative Agreements No action, suit, proceeding, inquiry or investigation shall have been executed and delivered instituted or threatened by the Commission which would adversely affect the Fund’s standing as a registered investment company under the Investment Company Entities party thereto and shall be in full force and effect on such dateAct or the standing of the Investment Adviser or Sub-Advisers as a registered investment adviser under the Advisers Act.
(k) The Shares shall have been duly authorized for listing on the New York Stock Exchange, subject only to official notice of issuance thereof.
(l) On the Closing Date, the Investment Adviser shall deliver to each of the other parties to the Fee Agreements copies of the Fee Agreements, executed by the Investment Adviser and dated the Closing Date, together with reproduced copies of such agreements executed by the Investment Adviser for each of the other parties thereto.
(m) The several obligations of the Underwriters to purchase Additional Shares hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificatecertificates, dated the Option Closing Date Date, of the chief executive officer and signed by chief financial officer (or officers acting in similar capacities) of the Fund and an executive officer of each of the CompanyInvestment Adviser and Western Asset, confirming that the certificate certificates delivered on the Closing Date pursuant to Section 6(b) hereof remains remain true and correct as of such Option Closing Date;
(ii) an opinion and negative assurance letter of Xxxxxxxx Simpson Thacher & Xxxxx LLPBaxxxxxx XXX, 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 & Xxxxxx L.L.P., counsel for the Underwritersxxxnsex xxx xxe Fund, 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;
(iii) an opinion and negative assurance letter of the Secretary of the Investment Adviser, an opinion of Simpson Thacher & Baxxxxxx XXX, xxxnsex xxx xxe Investment Adviser, and an opinion of the General Counsel of Western Asset for the Sub-Advisers, 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 opinion required by Section 6(e) hereof;
(iv) an opinion and negative assurance letter of Clifford Chance US LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Additional Shares to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(f) hereof;
(v) [RESERVED];
(vi) a letter dated the Option Closing Date, in form and substance satisfactory to the RepresentativesUnderwriters, from Deloitte, PricewaterhouseCoopers LLP independent public accountants, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(f6(h) hereof; provided that the letter delivered on the Option Closing Date shall use a “cut-off date” not earlier than three business days prior to such Option Closing Date;
(v) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Von Gonten, independent reserves engineers, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(h) hereof; and
(vivii) such other documents as the Representatives may reasonably request with respect to the good standing of the Company EntitiesFund and each of the Advisers, 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 Additional Shares.
Appears in 1 contract
Samples: Underwriting Agreement (Western Asset Diversified Income Fund)
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 [●] [a.m./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 the Company Entities its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62for purposes of Rule 436(g)(2) of 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 Entitiesand 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 the Representatives’ your judgment, is material and adverse and that makes it, in the Representatives’ your judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Representatives Underwriters shall have received on the Closing Date a certificate, dated the Closing Date, addressed to the Underwriters Date and signed on behalf of the Company by an executive officer of the Company, to the effect set forth in Section 6(a5(a)(i) above and to the effect that the representations and warranties of the Company Parties contained in this Agreement are true and correct as of the Closing Date and that the Company Parties have 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 Representatives Underwriters shall have received on the Closing Date an opinion and negative assurance letter of Xxxxxxxx & Xxxxx Xxxxxx LLP, outside counsel for the Company, in each case dated the Closing Date Date, and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives, substantially each case in the form attached hereto as Exhibit C.previously agreed.
(d) The Representatives Underwriters shall have received on the Closing Date an opinion and negative assurance letter of Xxxxxx Xxxxx Xxxx & Xxxxxx L.L.P.Xxxxxxxx LLP, counsel for the Underwriters, in each case dated the Closing Date and addressed to the UnderwritersDate, in form and substance reasonably satisfactory to the RepresentativesUnderwriters. With respect to the negative assurances letters referred to in Sections 6(c5(c) and 6(d5(d) above, Xxxxxxxx & Xxxxx Xxxxxx LLP and Xxxxxx Xxxxx Xxxx & Xxxxxx L.L.P. Xxxxxxxx LLP may state that their opinions and beliefs are based upon their participation in the preparation of the Registration Statement, the Time of Sale Prospectus and the Prospectus and any amendments or supplements thereto and review and discussion of the contents thereof, but are without independent check or verification, except as specified. The opinion of Xxxxxxxx & Xxxxx Xxxxxx LLP described in Section 6(c5(c) above shall be rendered to the Underwriters at the request of the Company Parties and shall so state therein.
(e) The Representatives Underwriters shall have received from Deloitte a “comfort letter” (on the “initial comfort letter”) Closing Date an opinion of Xxxxx IP Law Group, outside patent counsel for the Company, dated as of the date hereof and addressed to the Underwriters, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given Closing Date in the most recent Time of Sale Prospectus, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offeringsform previously agreed.
(f) The Representatives Underwriters shall have received from Deloitte a “bring-down comfort letter” (the “bring-down comfort letter”) dated as received, on each of the Closing Date or date hereof and the Option Closing Date, as the case may be, and addressed to the Underwriters, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the Closing Date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than three days prior to letter dated the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter, and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(g) The Representatives shall have received from Von Gonten a letter (the “Initial Expert Letter”), dated as of the date hereof, in form and substance satisfactory to the Representatives, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offerings.
(h) The Representatives shall have received from Von Gonten a subsequent letter, dated as of the Closing Date hereof or the Option Closing Date, as the case may be, in form and substance satisfactory to the RepresentativesUnderwriters, which such 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 financial statements and certain financial information contained in the Registration Statement, the Time of Sale Prospectus and the Prospectus; provided that the letter shall cover the period from the Initial Expert Letter to delivered on the Closing Date or shall use a “cut-off date” not earlier than the Option Closing Date, as the case may be, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offeringsdate hereof.
(ig) The “lock-up” agreements, each substantially in the form of Exhibit A hereto, between the Representatives you and those certain stockholdersshareholders, officers and directors of the Company named in Schedule IV hereto relating to sales and certain other dispositions of shares of stock of the Company Common Stock or certain other securities, delivered to the Representatives you on or before the date hereof, shall be in full force and effect on the Closing Date.
(j) The Operative Agreements shall have been executed and delivered by the Company Entities party thereto and shall be in full force and effect on such date.
(k) . The several obligations of the Underwriters to purchase Additional Shares hereunder are subject to the delivery to the Representatives 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 Xxxxxxxx & Xxxxx 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 & Xxxxxx L.L.P., 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(d) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Deloitte, 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 three business days prior to such Option Closing Date;
(v) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Von Gonten, independent reserves engineers, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(h) hereof; and
(vi) such other documents as the Representatives you may reasonably request with respect to the good standing of the Company EntitiesCompany, 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 Additional Shares.
Appears in 1 contract
Conditions to the Underwriters’ Obligations. The obligations 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 [●] [a.m./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 Company's securities of any of the Company Entities by any “"nationally recognized statistical rating organization,” " as such term is defined in Section 3(a)(62for purposes of Rule 436(g)(2) of 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 Entitiesand its subsidiaries, taken as a whole, from that set forth in the Time Prospectus (exclusive of Sale Prospectus any amendments or supplements thereto subsequent to the date of this Agreement) that, in the Representatives’ your judgment, is material and adverse and that makes it, in the Representatives’ your judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Representatives Underwriters shall have received on the Closing Date a certificate, dated the Closing Date, addressed to the Underwriters Date and signed by an executive officer of the Company, to the effect set forth in Section 6(a5(a)(i) above and to the effect that the representations and warranties of the Company Parties contained in this Agreement are true and correct as of the Closing Date and that the Company Parties 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 Representatives shall have received on the Closing Date an opinion of Xxxxxxxx & Xxxxx LLP, outside counsel for the Company, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as Exhibit C.
(d) The Representatives shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxx L.L.P., counsel for the Underwriters, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives. With respect to Sections 6(c) and 6(d) above, Xxxxxxxx & Xxxxx LLP and Xxxxxx & Xxxxxx L.L.P. 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 Xxxxxxxx & Xxxxx LLP described in Section 6(c) above shall be rendered to the Underwriters at the request of the Company Parties and shall so state therein.
(e) The Representatives shall have received from Deloitte a “comfort letter” (the “initial comfort letter”) dated as of the date hereof and addressed to the Underwriters, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the most recent Time of Sale Prospectus, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(f) The Representatives shall have received from Deloitte a “bring-down comfort letter” (the “bring-down comfort letter”) dated as of the Closing Date or the Option Closing Date, as the case may be, and addressed to the Underwriters, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the Closing Date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter, and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(g) The Representatives shall have received from Von Gonten a letter (the “Initial Expert Letter”), dated as of the date hereof, in form and substance satisfactory to the Representatives, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offerings.
(h) The Representatives shall have received from Von Gonten a subsequent letter, dated as of the Closing Date or the Option Closing Date, as the case may be, in form and substance satisfactory to the Representatives, which such letter shall cover the period from the Initial Expert Letter to the Closing Date or the Option Closing Date, as the case may be, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offerings.
(i) The “lock-up” agreements, each substantially in the form of Exhibit A hereto, between the Representatives and those certain stockholders, officers and directors of the Company named in Schedule IV hereto relating to sales and certain other dispositions of shares of stock of the Company or certain other securities, delivered to the Representatives on or before the date hereof, shall be in full force and effect on the Closing Date.
(j) The Operative Agreements shall have been executed and delivered by the Company Entities party thereto and shall be in full force and effect on such date.
(k) The several obligations of the Underwriters to purchase Additional Shares hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate, dated the Option Closing Date and signed by an executive officer of the Company, confirming that the certificate delivered on the Closing Date pursuant to Section 6(b) hereof remains true and correct as of such Option Closing Date;
(ii) an opinion of Xxxxxxxx & Xxxxx 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 & Xxxxxx L.L.P., 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(d) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Deloitte, 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 three business days prior to such Option Closing Date;
(v) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Von Gonten, independent reserves engineers, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(h) hereof; and
(vi) such other documents as the Representatives may reasonably request with respect to the good standing of the Company Entities, 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 Additional Shares.the
Appears in 1 contract
Conditions to the Underwriters’ Obligations. The obligations of the Company to sell the Shares to the Underwriters and the several obligations of the Underwriters to purchase and pay for the Shares on the Closing Date are subject to the condition that the Registration Statement shall have become effective not later than [●] [a.m./p.m.] 5:00 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 the Company Entities its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Securities Exchange Act; and
(ii) 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 Entitiesand its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus that, in the Representatives’ your judgment, is material and adverse and that makes it, in the Representatives’ your judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Representatives Underwriters shall have received on the Closing Date a certificate, dated the Closing Date, addressed to the Underwriters Date and signed on behalf of the Company by an executive officer of the Company, solely in his or her capacity as an executive officer and not in his or her individual capacity, to the effect set forth in Section 6(a5(a) above and to the effect that the representations and warranties of the Company Parties contained in this Agreement are true and correct as of the Closing Date and that the Company Parties have 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 Representatives Underwriters shall have received on the Closing Date an opinion of Xxxxxxxx Xxxxxxx Xxxx & Xxxxx LLPXxxxxxx Limited, outside Bermuda counsel for the Company, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to the RepresentativesDate, substantially in the form attached hereto as Exhibit C.C hereto.
(d) The Representatives Underwriters shall have received on the Closing Date an opinion and letter of Xxxxxxxx & Xxxxx LLP, outside U.S. counsel for the Company, each dated the Closing Date, substantially in the forms attached as Exhibits D-1 and D-2 hereto.
(e) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx Skadden, Arps, Slate, Xxxxxxx & Xxxxxx L.L.P.Xxxx LLP, counsel for the Underwriters, dated the Closing Date and addressed to the UnderwritersDate, in form and substance reasonably satisfactory to the RepresentativesUnderwriters. With respect to Sections 6(c5(c), 5(d) and 6(d5(e) above, Xxxxxxx Xxxx & Xxxxxxx Limited, Xxxxxxxx & Xxxxx LLP and Xxxxxx Skadden, Arps, Slate, Xxxxxxx & Xxxxxx L.L.P. Xxxx LLP, respectively, may state that their opinions and beliefs are based upon their participation in the preparation of the Registration Statement, the Time of Sale Prospectus and the Prospectus and any amendments or supplements thereto and review and discussion of the contents thereof, but are without independent check or verification, except as specified. The opinion opinions of Xxxxxxx Xxxx & Xxxxxxx Limited and Xxxxxxxx & Xxxxx LLP described in Section 6(cSections 5(c) and 5(d), respectively, above shall be rendered to the Underwriters at the request of the Company Parties and shall so state therein.
(ef) The Representatives Underwriters shall have received from Deloitte a “comfort letter” (the “initial comfort letter”) dated as received, on each of the date hereof and addressed to the Underwriters, in form and substance satisfactory to the Representatives, Closing Date: (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of a letter dated the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the most recent Time of Sale Prospectus, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(f) The Representatives shall have received from Deloitte a “bring-down comfort letter” (the “bring-down comfort letter”) dated as of the Closing Date or the Option Closing Date, as the case may be, and addressed to the Underwriters, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the Closing Date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter, and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(g) The Representatives shall have received from Von Gonten a letter (the “Initial Expert Letter”), dated as of the date hereof, in form and substance satisfactory to the Representatives, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offerings.
(h) The Representatives shall have received from Von Gonten a subsequent letter, dated as of the Closing Date or the Option Closing Date, as the case may be, in form and substance satisfactory to the RepresentativesUnderwriters, which such letter shall cover from Deloitte LLP, independent public accountants, containing statements and information of the period from the Initial Expert Letter type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the Closing Date financial statements and certain financial information of the Company contained in the Registration Statement, the Time of Sale Prospectus and the Prospectus; and (ii) a letter dated the date hereof or the Option Closing Date, as the case may be, stating in form and substance satisfactory to the conclusions Underwriters, from Deloitte & Touche LLP, independent public accountants, containing statements and findings information of such firm the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to reserve the financial statements of the Orbitz Worldwide, Inc. contained in the Registration Statement, the Time of Sale Prospectus and other operational information and other matters as is customary to underwriters in connection with registered public offeringsthe Prospectus; provided that each letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
(ig) The “lock-up” agreements, each substantially in the form of Exhibit A hereto, between the Representatives you and those certain stockholdersshareholders, officers and directors of the Company named in Schedule IV hereto relating to sales and certain other dispositions of shares of stock of the Company or certain other securities, delivered to the Representatives on or before the date hereof, shall be in full force and effect on the Closing Date.
(j) The Operative Agreements shall have been executed and delivered by the Company Entities party thereto and shall be in full force and effect on such date.
(kh) The several obligations of the Underwriters to purchase Additional Shares hereunder are subject to the delivery to the Representatives you on the applicable Option Closing Date of the following:
(i) a certificate, dated the Option Closing Date and signed on behalf of the Company by an executive officer of the CompanyCompany solely in his or her capacity as an executive officer and not his or her individual capacity, confirming that the certificate delivered on the Closing Date pursuant to Section 6(b5(b) hereof remains true and correct as of such Option Closing Date;
(ii) an opinion of Xxxxxxxx Xxxxxxx Xxxx & Xxxxx LLPXxxxxxx Limited, outside Bermuda 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(c5(c) hereof;
(iii) an opinion and letter of Xxxxxx Xxxxxxxx & Xxxxxx L.L.P.Xxxxx LLP, outside U.S. counsel for the UnderwritersCompany, 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 opinion and letter required by Section 6(d5(d) hereof;
(iv) an opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Additional Shares to be purchased on such Option Closing Date in form and substance satisfactory to the Underwriters;
(v) a letter dated the Option Closing Date, in form and substance satisfactory to the RepresentativesUnderwriters, from DeloitteDeloitte & Touche LLP, independent public accountants, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(f5(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;
(v) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Von Gonten, independent reserves engineers, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(h) hereof; and
(vi) such other documents as the Representatives you may reasonably request with respect to the good standing of the Company EntitiesCompany, 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 Additional Shares.
Appears in 1 contract
Conditions to the Underwriters’ Obligations. The obligations of the Company to sell the Shares to the Underwriters and the several obligations of the Underwriters to purchase and pay for the Shares on the Closing Date are subject to the condition that the Registration Statement shall have become effective not later than [●] [a.m./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 Company's securities of any of the Company Entities by any “"nationally recognized statistical rating organization,” " as such term is defined in Section 3(a)(62for purposes of Rule 436(g)(2) of 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 Entitiesand its subsidiaries, taken as a whole, from that set forth in the Time Prospectus (exclusive of Sale Prospectus any amendments or supplements thereto subsequent to the date of this Agreement) that, in the Representatives’ your judgment, is material and adverse and that makes it, in the Representatives’ your judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Representatives Underwriters shall have received on the Closing Date a certificate, dated the Closing Date, addressed to the Underwriters Date and signed by an executive officer of the Company, to the effect set forth in Section 6(a5(a)(i) above and to the effect that the representations and warranties of the Company Parties contained in this Agreement are true and correct as of the Closing Date and that the Company Parties have 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 Representatives Underwriters shall have received on the Closing Date an opinion of Xxxxxxxx Kirkland & Xxxxx LLPEllis, outside counsel for the Company, dated the Xxxxxxx Datx, xx the effect that:
(i) the Company has been duly incorporated and is validly existing as a corporation and in good standing under the General Corporation Law of the State of Delaware. The Company is duly qualified to do business as a foreign corporation in the State of Michigan, which such counsel has been informed by the Company is the only State in which the Company is qualified to do business as a foreign corporation;
(ii) based solely on such counsel's review of the minute books and stock records of such entities, to such counsel's knowledge, all of the issued and outstanding capital stock of R.J. Tower Corporation, a Michigan corporation, ("R.J. Txxxx") is owned of record by the Company and all ox xxe issued and outstanding capital stock of other significant subsidiaries is owned of record by R.J. Tower, except as otherwise disclosed;
(iii) eaxx xf the significant subsidiaries is a corporation existing and in good standing under the laws of the jurisdiction of its incorporation. Each significant subsidiary is in good standing as a foreign corporation in the specified states, which such counsel has been informed by the Company are the only states in which such significant subsidiaries are qualified to do business as a foreign corporation;
(iv) each of the significant subsidiaries has, under its certificate of incorporation and by-laws, the corporate power and authority necessary to own and lease its properties and to conduct its business as described in the Prospectus;
(v) under its certificate of incorporation and by-laws, the Company has the corporate power and authority necessary to own and lease its properties and to conduct its business as described in the Prospectus;
(vi) the Company's authorized capital stock is as set forth under the heading "Capitalization" in the Prospectus;
(vii) the issuance of the Shares to be sold by the Company on the date hereof pursuant to this Agreement has been duly authorized and, when appropriate certificates representing those Shares are duly countersigned by the Company's transfer agent/registrar and delivered against payment of the agreed consideration therefor in accordance with this Agreement, those Shares will be validly issued, fully paid and nonassessable. The issuance of those Shares is not subject to any preemptive rights under the terms of the statute under which the Company is incorporated, under the Company's certificate of incorporation or by-laws or under any contractual provision of which such counsel has knowledge;
(viii) this Agreement has been duly authorized, executed and delivered by the Company;
(ix) the Company's execution and delivery of this Agreement and the Company's sale of the Shares to you in accordance with this Agreement do not (A) constitute a violation by the Company of any applicable provision of any law (except that we express no opinion in this paragraph as to compliance with any disclosure requirement or any prohibition against fraud or misrepresentation), (B) violate the Company's certificate of incorporation or by-laws or (C) breach, or result in a default under, any existing obligation of the Company or any of its subsidiaries under any of the specified agreements (which representatives of the Company have advised such counsel include all material debt agreements and instruments of or binding on the Company or any of the Company's subsidiaries). The specified agreements contain debt incurrence tests and/or other financial covenants and tests; such counsel has not attempted to independently apply any of those covenants or tests. Representatives of the Company have however advised such counsel that they have applied all of those tests and covenants and have determined that none of those tests or covenants will be breached by the Company's sale of the Shares to the underwriters or by any of the other actions cited at the beginning of this paragraph, and such counsel has assumed without investigation that such advice and determination are correct.
(x) The Company was not required to obtain any consent, approval, authorization or order of any governmental agency for the issuance, delivery and sale of the Shares under this Agreement except for the order by the Commission declaring the Registration Statement effective;
(xi) the information in (A) the Prospectus under the heading "Description of Capital Stock" to the extent that it summarizes the terms of the Common Stock and under the heading "Underwriters" to the extent that it summarizes documents to which the Company is a party and (B) the Registration Statement in Item 15 to the extent it summarizes the General Corporation Law of the State of Delaware and the Company's certificate of incorporation, in each case is correct in all material respects;
(xii) such counsel does not know of any legal action or any governmental action, investigation or proceeding that is pending or threatened against the Company or any of the Company's subsidiaries that has caused us to conclude that such preceding is required by Item 103 of Regulation S-K to be described in the Prospectus but that is not so described. Such counsel does not know of any contract to which the Company is a party or to which any of its property is subject that has caused us to conclude that such contract is required to be described in the Prospectus but is not so described or is required to be filed as an exhibit to the Registration Statement but has not been so filed;
(xiii) the Company is not and, immediately after the sale of the Shares to the Underwriters and the application of the net proceeds therefrom as described in the Prospectus under the caption "Use of Proceeds," will not be an "investment company" as such term is defined in the Investment Company Act of 1940, as amended;
(xiv) nothing has come to the attention of such counsel that causes such counsel to conclude that (A) 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) appeared on its face not to be responsive in all material respects to the requirements of Form S-3, (B) 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 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 (C) 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 of its date or as of the Closing Date and addressed 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 Underwritersstatements therein, in form and substance reasonably satisfactory to the Representativeslight of the circumstances under which they were made, substantially in the form attached hereto as Exhibit C.not misleading.
(d) The Representatives Underwriters shall have received on the Closing Date an opinion of Xxxxxx Davis Polk & Xxxxxx L.L.P.Wardwell, counsel for the Underwriters, dated thx Xxxxxxx Datx, xxxxxing the Closing Date and addressed matters referred to in Sections 5(c)(vii), 5(c)(viii), 5(c)(xi) (but only as to the statements in the Prospectus under "Underwriters, in form ") and substance reasonably satisfactory to the Representatives5(c)(xiv) above. With respect to Sections 6(c) and 6(dSection 5(c)(xiv) above, Xxxxxxxx Kirkland & Xxxxx LLP Ellis and Xxxxxx Davis Polk & Xxxxxx L.L.P. Wardwell may state that their opinions and beliefs are based thexx xxxxxfs xxx xased upon their participation theix paxxxxxxxxion in the preparation of the Registration Statement, the Time of Sale Prospectus Statement 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 Xxxxxxxx Kirkland & Xxxxx LLP Ellis described in Section 6(c5(c) above shall be rendered to the Underwriters renxxxxx xx thx Xxxerwriters at the request of the Company Parties and shall so state therein.
(e) The Representatives Underwriters shall have received from Deloitte a “comfort letter” (the “initial comfort letter”) dated as received, on each of the date hereof and addressed to on the UnderwritersClosing Date, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of a letter dated the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the most recent Time of Sale Prospectus, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(f) The Representatives shall have received from Deloitte a “bring-down comfort letter” (the “bring-down comfort letter”) dated as of the Closing Date or the Option Closing Date, as the case may be, and addressed to the Underwriters, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the Closing Date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter, and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(g) The Representatives shall have received from Von Gonten a letter (the “Initial Expert Letter”), dated as of the date hereof, in form and substance satisfactory to the Representatives, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offerings.
(h) The Representatives shall have received from Von Gonten a subsequent letter, dated as of the Closing Date or the Option Closing Date, as the case may be, in form and substance satisfactory to the RepresentativesUnderwriters, which such from Arthur Andersen LLP, independent public accountants, containixx xxxtxxxxxx xnd information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Prospectus; provided that the letter shall cover the period from the Initial Expert Letter to delivered on the Closing Date shall use a "cut-off date" not earlier than the date hereof.
(f) The Underwriters shall have received on each of the date hereof and on the Closing Date, a letter dated as of the date hereof or the Option Closing Date, as the case may be, stating in form and substance satisfactory to the conclusions Underwriters, from Arthur Andersen LLP, independent public accountants, containixx xxxuxxxxxx xhat the activities performed by such firm in connection with the Registration Statement and findings the Prospectus (including providing its consent to the inclusion of its audit report therein) and the other matters contemplated hereby were at all relevant times subject to such firm's quality control system for the U.S. accounting and auditing practice to provide reasonable assurances that such activities were conducted in compliance with professional standards and that at all relevant times there was appropriate continuity of such firm's personnel working on such activities, availability of national office consultation and availability of personnel at foreign affiliates of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offeringsconduct the relevant portions of such activities.
(ig) The “"lock-up” " agreements, each substantially in the form of Exhibit A hereto, between you and the Representatives and those certain stockholders, executive officers and directors of the Company named in Schedule IV hereto relating to sales and certain other dispositions of shares of stock of the Company Common Stock or certain other securities, delivered to the Representatives you on or before the date hereof, shall be in full force and effect on the Closing Date.
(j) The Operative Agreements shall have been executed and delivered by the Company Entities party thereto and shall be in full force and effect on such date.
(k) . The several obligations of the Underwriters to purchase Additional Shares hereunder are subject to the delivery to the Representatives 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 Xxxxxxxx & Xxxxx 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 & Xxxxxx L.L.P., 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(d) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Deloitte, 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 three business days prior to such Option Closing Date;
(v) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Von Gonten, independent reserves engineers, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(h) hereof; and
(vi) such other documents as the Representatives you may reasonably request with respect to the good standing of the Company EntitiesCompany, 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 Additional Shares.
Appears in 1 contract
Conditions to the Underwriters’ Obligations. The obligations of the Company to sell the Shares Securities to the Underwriters and the several obligations of the Underwriters to purchase and pay for the Shares on the Closing Date Securities are subject to the condition that the Registration Statement shall have become effective not later than [●] ________ [a.m./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 Company's securities of any of the Company Entities by any “"nationally recognized statistical rating organization,” " as such term is defined in Section 3(a)(62for purposes of Rule 436(g)(2) of 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 Entities, taken as a whole, from that set forth in the Time of Sale Prospectus that, in the Representatives’ judgment, is material and adverse and that makes it, in the Representatives’ judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.its
(b) The Representatives Underwriters shall have received on the Closing Date a certificate, dated the Closing Date, addressed to the Underwriters Date and signed by an executive officer of the Company, to the effect set forth in Section 6(aclause (a)(i) above and to the effect that the representations and warranties of the Company Parties contained in this Agreement are true and correct as of the Closing Date and that the Company Parties have 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 Representatives Underwriters shall have received on the Closing Date an opinion of Xxxxxxxx & Xxxxx LLPNeal X. Xxxxxx, outside counsel for Xxnior Vice President and General Counsel of the Company, dated the Closing Date and addressed Date, to the Underwriters, in form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as Exhibit C.
(d) The Representatives shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxx L.L.P., counsel for the Underwriters, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives. With respect to Sections 6(c) and 6(d) above, Xxxxxxxx & Xxxxx LLP and Xxxxxx & Xxxxxx L.L.P. 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 Xxxxxxxx & Xxxxx LLP described in Section 6(c) above shall be rendered to the Underwriters at the request of the Company Parties and shall so state therein.
(e) The Representatives shall have received from Deloitte a “comfort letter” (the “initial comfort letter”) dated as of the date hereof and addressed to the Underwriters, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the most recent Time of Sale Prospectus, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(f) The Representatives shall have received from Deloitte a “bring-down comfort letter” (the “bring-down comfort letter”) dated as of the Closing Date or the Option Closing Date, as the case may be, and addressed to the Underwriters, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the Closing Date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter, and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(g) The Representatives shall have received from Von Gonten a letter (the “Initial Expert Letter”), dated as of the date hereof, in form and substance satisfactory to the Representatives, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offerings.
(h) The Representatives shall have received from Von Gonten a subsequent letter, dated as of the Closing Date or the Option Closing Date, as the case may be, in form and substance satisfactory to the Representatives, which such letter shall cover the period from the Initial Expert Letter to the Closing Date or the Option Closing Date, as the case may be, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offerings.effect that:
(i) The “lock-up” agreementsthe Company has been duly incorporated, each substantially 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 form Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of Exhibit A heretoits business or its ownership or leasing of property requires such qualification, between except to the Representatives extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the Company and those certain stockholdersits subsidiaries, officers and directors taken as a whole;
(ii) each subsidiary of the Company named has been duly incorporated or organized, is validly existing as a corporation, limited liability company, partnership or other similar entity in Schedule IV hereto relating to sales and certain other dispositions of shares of stock good standing under the laws of the Company jurisdiction of its incorporation, has the corporate or certain other securitiespower 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, delivered except to the Representatives on extent that the failure to be so qualified or before the date hereof, shall be in full force and good standing would not have a material adverse effect on the Closing Date.Company and its subsidiaries, taken as a whole;
(jiii) The Operative Agreements shall have each of this Agreement and the Indenture has been duly authorized, executed and delivered by the Company Entities party thereto and shall be in full force and effect on such date.
(k) The several obligations of the Underwriters to purchase Additional Shares hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate, dated the Option Closing Date and signed by an executive officer of the Company, confirming that the certificate delivered on the Closing Date pursuant to Section 6(b) hereof remains true and correct as of such Option Closing Date;
(ii) an opinion of Xxxxxxxx & Xxxxx 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 & Xxxxxx L.L.P., 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(d) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Deloitte, 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 three business days prior to such Option Closing Date;
(v) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Von Gonten, independent reserves engineers, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(h) hereof; and
(vi) such other documents as the Representatives may reasonably request with respect to the good standing of the Company Entities, 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 Additional Shares.
Appears in 1 contract
Conditions to the Underwriters’ Obligations. The obligations of the Company 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 [●[ ] [a.m./p.m.] 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 the Company Entities its subsidiaries, parents or affiliates, by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) 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 Entitiesand its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus that, in the Representatives’ your judgment, is material and adverse and that makes it, in the Representatives’ your judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Representatives Underwriters shall have received on the Closing Date a certificate, dated the Closing Date, addressed to the Underwriters Date and signed by an executive officer of the Company, to the effect set forth in Section 6(a6(a)(i) above and to the effect that the representations and warranties of the Company Parties contained in this Agreement are true and correct as of the Closing Date and that the Company Parties have 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 Representatives Underwriters shall have received on the Closing Date an opinion and negative assurance letter of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx & Xxxxx LLP, outside counsel for the Company, dated the Closing Date and addressed to the UnderwritersDate, in form substantially the forms as set forth in Exhibits A and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as Exhibit C.B hereto.
(d) The Underwriters shall have received on the Closing Date an opinion of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, counsel for the Selling Shareholders, dated the Closing Date, in substantially the form as set forth in Exhibit C hereto.
(e) The Underwriters shall have received on the Closing Date such additional opinion letters with respect to foreign domiciled Selling Shareholders as previously agreed to by the parties to be delivered by appropriate foreign counsel in such previously mutually agreed form between such foreign counsel and Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters.
(f) The Underwriters shall have received on the Closing Date an opinion and negative assurance letter of Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, dated the Closing Date, in the form mutually agreed upon between the Representatives and Xxxxx Xxxx & Xxxxxxxx LLP.
(g) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx Westwood & Xxxxxx L.L.P.Riegels, counsel for British Virgin Islands Counsel to the UnderwritersCompany, dated the Closing Date and addressed to the UnderwritersDate, in substantially the form and substance reasonably satisfactory to the Representatives. With respect to Sections 6(c) and 6(d) above, Xxxxxxxx & Xxxxx LLP and Xxxxxx & Xxxxxx L.L.P. 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 Xxxxxxxx & Xxxxx LLP described in Section 6(c) above shall be rendered to the Underwriters at the request of the Company Parties and shall so state therein.
(e) The Representatives shall have received from Deloitte a “comfort letter” (the “initial comfort letter”) dated as of the date hereof and addressed to the Underwriters, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the most recent Time of Sale Prospectus, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(f) The Representatives shall have received from Deloitte a “bring-down comfort letter” (the “bring-down comfort letter”) dated as of the Closing Date or the Option Closing Date, as the case may be, and addressed to the Underwriters, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the Closing Date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter, and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(g) The Representatives shall have received from Von Gonten a letter (the “Initial Expert Letter”), dated as of the date hereof, in form and substance satisfactory to the Representatives, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offeringsExhibit D hereto.
(h) The Representatives Underwriters shall have received from Von Gonten a subsequent letterreceived, dated as on each of the date hereof and the Closing Date Date, a letter dated the date hereof or the Option Closing Date, as the case may be, in form and substance reasonably satisfactory to the RepresentativesUnderwriters, which such from 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 shall cover the period from the Initial Expert Letter to delivered on the Closing Date or shall use a “cut-off date” not earlier than the Option Closing Date, as the case may be, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offeringsdate hereof.
(i) The “lock-up” agreements, each substantially in the form of Exhibit A E hereto, between the Representatives you and those certain stockholderssecurity holders, officers and directors of the Company named in Schedule IV hereto relating to sales and certain other dispositions of shares of stock of the Company Ordinary Shares or certain other securities, delivered to the Representatives you on or before the date hereof, shall be in full force and effect on the Closing Date.
(j) The Operative Agreements Each Underwriter shall have been executed and delivered by received the Company Entities party thereto and shall be certificate described in full force and effect on such dateSection 7(i), if applicable, from the Company.
(k) Each Underwriter shall have received a Form W-9 or Form W-8, as described in Section 8, from each Selling Shareholder. The several obligations of the Underwriters to purchase Additional Shares hereunder are subject to the delivery to the Representatives 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 Xxxxxxxx & Xxxxx 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 & Xxxxxx L.L.P., 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(d) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Deloitte, 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 three business days prior to such Option Closing Date;
(v) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Von Gonten, independent reserves engineers, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(h) hereof; and
(vi) such other documents as the Representatives you may reasonably request with respect to the good standing of the Company EntitiesCompany, 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 Additional Shares.
Appears in 1 contract
Conditions to the Underwriters’ Obligations. The several obligations of the Company Selling Stockholders to sell the Shares and Warrants to the Underwriters and the several obligations of the Underwriters Underwriters, on the other hand, to purchase and pay for the Shares and Warrants on the Closing Date are subject to the condition that the Registration Statement shall have become effective not later than [●] [a.m./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 indicates possible changenegative implications, in the rating accorded any of the Company's securities of any of the Company Entities by any “"nationally recognized statistical rating organization,” " as such term is defined in Section 3(a)(62for purposes of Rule 436(g)(2) of 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 Entitiesand its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus that, in the Representatives’ your judgment, is material and adverse and that makes it, in the Representatives’ your judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Representatives Underwriters shall have received on the Closing Date a certificate, dated the Closing Date, addressed to the Underwriters Date and signed by an executive officer of the Company, to the effect set forth in Section 6(aclause (a)(i) above and to the effect that the representations and warranties of the Company Parties contained in this Agreement are true and correct as of the Closing Date and that the Company Parties have 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 Representatives Underwriters shall have received on the Closing Date an opinion of Xxxxxxxx Lathxx & Xxxxx LLPXatkxxx, outside counsel xxunsel for the Company, dated the Closing Date and addressed Date, to the Underwriters, in form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as Exhibit C.
(d) The Representatives shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxx L.L.P., counsel for the Underwriters, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives. With respect to Sections 6(c) and 6(d) above, Xxxxxxxx & Xxxxx LLP and Xxxxxx & Xxxxxx L.L.P. 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 Xxxxxxxx & Xxxxx LLP described in Section 6(c) above shall be rendered to the Underwriters at the request of the Company Parties and shall so state therein.
(e) The Representatives shall have received from Deloitte a “comfort letter” (the “initial comfort letter”) dated as of the date hereof and addressed to the Underwriters, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the most recent Time of Sale Prospectus, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(f) The Representatives shall have received from Deloitte a “bring-down comfort letter” (the “bring-down comfort letter”) dated as of the Closing Date or the Option Closing Date, as the case may be, and addressed to the Underwriters, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the Closing Date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter, and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(g) The Representatives shall have received from Von Gonten a letter (the “Initial Expert Letter”), dated as of the date hereof, in form and substance satisfactory to the Representatives, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offerings.
(h) The Representatives shall have received from Von Gonten a subsequent letter, dated as of the Closing Date or the Option Closing Date, as the case may be, in form and substance satisfactory to the Representatives, which such letter shall cover the period from the Initial Expert Letter to the Closing Date or the Option Closing Date, as the case may be, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offerings.
(i) The “lock-up” agreements, each substantially in the form of Exhibit A hereto, between the Representatives and those certain stockholders, officers and directors of the Company named in Schedule IV hereto relating to sales and certain other dispositions of shares of stock of the Company or certain other securities, delivered to the Representatives on or before the date hereof, shall be in full force and effect on the Closing Date.
(j) The Operative Agreements shall have been executed and delivered by the Company Entities party thereto and shall be in full force and effect on such date.
(k) The several obligations of the Underwriters to purchase Additional Shares hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the followingthat:
(i) a certificate, dated the Option Closing Date Company has been duly incorporated and signed by an executive officer is validly existing and in good standing under the laws of the CompanyState of Delaware, confirming that with corporate power and authority to own its properties and conduct its business as described in the certificate delivered on the Closing Date pursuant to Section 6(b) hereof remains true and correct as of such Option Closing DateProspectus;
(ii) an opinion of Xxxxxxxx & Xxxxx LLPthe Company has authorized capital stock as set forth in the Prospectus, outside counsel for and the Company, dated the Option Closing Date, relating Common Stock and Warrants [and Merger Warrants] conform to the Additional Shares to be purchased on such Option Closing Date and otherwise to description thereof contained in the same effect as the opinion required by Section 6(c) hereofProspectus;
(iii) an opinion of Xxxxxx & Xxxxxx L.L.P., 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(d) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Deloitte, 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 three business days prior to such Option Closing Date;
(v) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Von Gonten, independent reserves engineers, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(h) hereof; and
(vi) such other documents as the Representatives may reasonably request with respect to the good standing of the Company Entities, the due authorization and issuance of the Additional Shares to be sold on such Option Closing Date and other matters related by the Selling Stockholders pursuant to the issuance of such Additional Shares.Underwriting Agreement have been duly authorized and validly issued and are fully paid and non-assessable; the Warrant Shares to be issued and sold by the Company pursuant
Appears in 1 contract
Samples: Underwriting Agreement (Safeway Inc)
Conditions to the Underwriters’ Obligations. The obligations of the Company 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 [●] [a.m./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) 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 the Company Entities its Subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of 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 EntitiesOneStream Parties and the Subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus that, in the Representatives’ judgment, is material and adverse and that makes it, in the Representatives’ judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Representatives Underwriters shall have received on the Closing Date a certificate, dated the Closing Date, addressed to the Underwriters Date and signed by an executive officer of the Companyeach OneStream Party on behalf of such OneStream Party, to the effect set forth in Section 6(aSections 6(a)(i) and 6(a)(ii) above and to the effect that the representations and warranties of the Company OneStream Parties contained in this Agreement are true and correct as of the Closing Date and that the Company Parties have each OneStream Party has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Representatives Underwriters shall have received on the Closing Date an opinion and negative assurance letter of Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation, outside counsel for the OneStream Parties, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives.
d) The Underwriters shall have received on the Closing Date an opinion of Xxxxxxxx & Xxxxx LLPDay, outside counsel for each of the CompanySellers identified as a “KKR Seller” on Schedule II hereto (collectively, “KKR”), in their capacity as Selling Stockholders, dated the Closing Date and addressed to the UnderwritersDate, in form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as Exhibit C..
(de) The Representatives Underwriters shall have received on the Closing Date an opinion of Xxxxxx LLP, outside counsel for the Selling Stockholders other than KKR, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives.
f) The Underwriters shall have received on the Closing Date an opinion and negative assurance letter of Xxxxxx & Xxxxxx L.L.P.Xxxxxxx LLP, counsel for the Underwriters, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory acceptable to the Representatives. With respect to the negative assurance letters to be delivered pursuant to Sections 6(c) and 6(d6(f) above, Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxx LLP Xxxxxx, Professional Corporation, and Xxxxxx & Xxxxxx L.L.P. Xxxxxxx LLP may state that their opinions and beliefs are based upon their participation in the preparation of the Registration Statement, the Time of Sale Prospectus and the Prospectus and any amendments or supplements thereto and review and discussion of the contents thereof, but are without independent check or verification, except as specified. The With respect to Section 6(d) and 6(e) above, Xxxxx Day and Xxxxxx LLP may rely upon an opinion or opinions of Xxxxxxxx & Xxxxx LLP described in Section 6(c) above shall be rendered counsel for any Selling Stockholders and, with respect to factual matters and to the Underwriters at extent such counsel deems appropriate, upon the request representations of each Selling Stockholder contained herein and in the Company Parties Custody Agreement and shall so state therein.
Power of Attorney of such Selling Stockholder (eas applicable) The Representatives shall have received from Deloitte a “comfort letter” and in other documents and instruments; provided that (A) each such counsel for the “initial comfort letter”) dated as of the date hereof and addressed Selling Stockholder is satisfactory to the UnderwritersRepresentatives, (B) a copy of each opinion so relied upon is delivered to the Representatives and is in form and substance satisfactory to the Representatives, (iC) confirming that they are independent public accountants within the meaning copies of the Securities Act such Custody Agreements and are in compliance with the applicable requirements relating Powers of Attorney and of any such other documents and instruments shall be delivered to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, Representatives and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the most recent Time of Sale Prospectus, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(f) The Representatives shall have received from Deloitte a “bring-down comfort letter” (the “bring-down comfort letter”) dated as of the Closing Date or the Option Closing Date, as the case may be, and addressed to the Underwriters, be in form and substance satisfactory to the Representatives, Representatives and (iD) confirming Xxxxx Day and Xxxxxx LLP shall state in their opinion that they are independent public accountants within the meaning of the Securities Act and are justified in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the Closing Date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down letter), the conclusions and findings of relying on each such firm with respect to the financial information and other matters covered by the initial letter, and (iii) confirming in all material respects the conclusions and findings set forth in the initial letteropinion.
(g) The Representatives Underwriters shall have received from Von Gonten a letter (the “Initial Expert Letter”)received, dated as on each of the date hereof, in form hereof and substance satisfactory to the Representatives, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offerings.
(h) The Representatives shall have received from Von Gonten a subsequent letter, dated as of the Closing Date Date, a letter dated the date hereof or the Option Closing Date, as the case may be, in form and substance satisfactory to the RepresentativesUnderwriters, which such 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 contained in the Registration Statement, the Time of Sale Prospectus and the Prospectus; provided that the letter shall cover the period from the Initial Expert Letter to delivered on the Closing Date or shall use a “cut‑off date” not earlier than the Option date hereof.
h) The Underwriters shall have received, on each of the date hereof and the Closing Date, as a Chief Financial Officer’s certificate, signed on behalf of the case may beCompany by the Chief Financial Officer of the Company, stating in form and substance reasonably satisfactory to the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offeringsRepresentatives.
(i) The “lock-up” lock‑up agreements, each substantially in the form of Exhibit A hereto, between the Representatives and those certain stockholders, officers and directors of the Company named in Schedule IV hereto relating to restrictions on sales and certain other dispositions of shares of stock of the Company Common Stock or certain other securities, delivered to the Representatives on or before the date hereofhereof (the “Lock-up Agreements”), shall be in full force and effect on the Closing Date.
(j) The Operative Agreements On or prior to the Closing Date, the Reorganization Transactions shall have been executed and delivered by completed in accordance with the Company Entities party thereto and shall Reorganization Transaction Documents (except with respect to aspects of those Reorganization Transactions that cannot or are not intended to be in full force and effect completed on such dateor prior to the purchase of the Shares on the Closing Date).
(k) The several obligations of the Underwriters to purchase Additional Shares hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) i. a certificate, dated the Option Closing Date and signed by an executive officer of the Companyeach OneStream Party on behalf of such OneStream Party, 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 Xxxxxxx Xxxxxxxx & Xxxxx LLPXxxxxx, Professional Corporation, 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) . [Reserved]
iv. an opinion and negative assurance letter of Xxxxxx & Xxxxxx L.L.P.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(d) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Deloitte, 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 three business days prior to such Option Closing Date;
(v) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Von Gonten, independent reserves engineers, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(h) hereof; and
(vi) such other documents as the Representatives may reasonably request with respect to the good standing of the Company Entities, 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 Additional Shares.
Appears in 1 contract
Conditions to the Underwriters’ Obligations. The obligations of the Company to sell the Shares to the Underwriters and the several obligations of the Underwriters to purchase and pay for the Shares on the Closing Date are subject to the condition that the Registration Statement shall have become effective not later than [●] [a.m./p.m.5:00 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) 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 the Company Entities its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of 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 Entitiesand its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus that, in the judgment of the Representatives’ judgment, is material and adverse and that makes it, in the judgment of the Representatives’ judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Representatives Underwriters shall have received on the Closing Date a certificate, dated the Closing Date, addressed to the Underwriters Date and signed by an executive officer of the Company, to the effect set forth in Section 6(aSections 5(a)(i) and 5(a)(ii) above and to the effect that the representations and warranties of the Company Parties contained in this Agreement are true and correct as of the Closing Date and that the Company Parties have 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 Representatives Underwriters shall have received on the Closing Date an opinion and negative assurance letter of Xxxxxx & Xxxxxxx LLP, outside counsel for the Company, dated the Closing Date, in the form and substance reasonably satisfactory to the Representatives.
(d) The Underwriters shall have received on the Closing Date an opinion and negative assurance letter of Xxxxxx LLP, counsel for the Underwriters, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriters.
(e) The Underwriters shall have received on the Closing Date an opinion of Xxxxxxxx & Xxxxx Xxxxxxxx LLP, outside intellectual property counsel for the Company, dated the Closing Date and addressed to the UnderwritersDate, in form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as Exhibit C.
(d) The Representatives shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxx L.L.P., counsel for the Underwriters, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives. With respect to Sections 6(c5(c) and 6(d(d) above, Xxxxxxxx Xxxxxx & Xxxxx Xxxxxxx LLP and Xxxxxx & Xxxxxx L.L.P. 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 and negative assurance letter of Xxxxxxxx Xxxxxx & Xxxxx Xxxxxxx LLP described in Section 6(c5(c) above shall be rendered to the Underwriters at the request of the Company Parties and shall so state therein.
(ef) The Representatives Underwriters shall have received from Deloitte a “comfort letter” (the “initial comfort letter”) dated as received, on each of the date hereof and addressed to the UnderwritersClosing Date, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of a letter dated the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the most recent Time of Sale Prospectus, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(f) The Representatives shall have received from Deloitte a “bring-down comfort letter” (the “bring-down comfort letter”) dated as of the Closing Date or the Option Closing Date, as the case may be, and addressed to the Underwriters, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the Closing Date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter, and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(g) The Representatives shall have received from Von Gonten a letter (the “Initial Expert Letter”), dated as of the date hereof, in form and substance satisfactory to the Representatives, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offerings.
(h) The Representatives shall have received from Von Gonten a subsequent letter, dated as of the Closing Date or the Option Closing Date, as the case may be, in form and substance satisfactory to the RepresentativesUnderwriters, which such from Ernst & Young LLP, independent registered public accounting 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 shall cover the period from the Initial Expert Letter to delivered on the Closing Date or shall use a “cut-off date” not earlier than the Option Closing Date, as the case may be, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offeringsdate hereof.
(ig) The “lock-up” agreements, each substantially in the form of Exhibit A hereto, between the Representatives executed by substantially all securityholders, and those certain stockholders, all officers and directors of the Company named in Schedule IV hereto relating to restrictions on sales and certain other dispositions of shares of stock of the Company Common Stock or certain other securities, delivered to the Representatives on or before the date hereofhereof (the “Lock-up Agreements”), shall be in full force and effect on the Closing Date.
(jh) The Operative Agreements chief financial officer of the Company shall have been executed delivered to the Underwriters, on each of the date hereof and delivered by on the Company Entities party thereto and shall be Closing Date, a certificate in full force and effect on such datea form reasonably acceptable to the Representatives.
(ki) The several obligations of the Underwriters to purchase Additional Shares hereunder are subject to the delivery to 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(b5(b) hereof remains true and correct as of such Option Closing Date;
(ii) an opinion and negative assurance letter of Xxxxxxxx Xxxxxx & Xxxxx Xxxxxxx LLP, outside counsel for the Company, dated the Option Closing Date, relating to the Additional Shares to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c5(c) hereof;
(iii) an opinion and negative assurance letter of Xxxxxx & Xxxxxx L.L.P.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(d5(d) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the RepresentativesUnderwriters, from DeloitteErnst & Young LLP, independent registered public accountantsaccounting firm, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(f5(f) hereof; provided that the letter delivered on the Option Closing Date shall use a “cut-off date” not earlier than three two business days prior to such Option Closing Date;
(v) a letter an opinion of Xxxxxxxx & Xxxxxxxx LLP, intellectual property counsel for the Company, dated the Option Closing Date, in form and substance satisfactory relating to the RepresentativesAdditional Shares to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 5(e) hereof;
(vi) a certificate, from Von Gonten, independent reserves engineers, 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 6(h5(h) hereof; and
(vivii) such other documents as the Representatives may reasonably request with respect to the good standing of the Company EntitiesCompany, 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 Additional Shares.
Appears in 1 contract
Conditions to the Underwriters’ Obligations. The obligations of the Company and Selling Stockholders 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 [●] [a.m./p.m.] 5:30 p.m. (New York City time) on the date hereof. The several obligations of the Underwriters are subject to the following further conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of the Company Entities its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) 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 Entitiesand 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 the Representatives’ your judgment, is material and adverse and that makes it, in the Representatives’ your judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Representatives Underwriters shall have received on the Closing Date a certificate, dated the Closing Date, addressed to the Underwriters Date and signed by an executive officer of the Company, to the effect set forth in Section 6(a) 5 above and to the effect that the representations and warranties of the Company Parties contained in this Agreement are true and correct as of the Closing Date and that the Company Parties have 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 Representatives Underwriters shall have received on the Closing Date an opinion and negative assurance letter of Xxxxxx, Xxxx & Xxxxxxxx, outside counsel for the Company and certain of the Selling Stockholders, each in form and substance reasonably satisfactory to the Underwriters.
(d) The Underwriters shall have received on the Closing Date an opinion of Xxxx Xxxxxxx & Xxxxxx LLP, counsel for Argentia Private Investments, Inc. and Xxxxxx Xxxxx, Senior Director, Legal Affairs, of Public Sector Pension Investment Board, sole parent of Argentia Private Investments Inc., dated the Closing Date, in form and substance reasonably satisfactory to the Underwriters.
(e) The Underwriters shall have received on the Closing Date an opinion of Xxxx Xxxxx & Xxxxxxx LLP, counsel for Xxxxxxxxx-Noodles, LLC, dated the closing date, in form and substance reasonably satisfactory to the Underwriters.
(f) The Underwriters shall have received on the Closing Date an opinion of Xxxxxxxx & Xxxxx LLP, outside counsel for the Company, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as Exhibit C.
(d) The Representatives shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxx L.L.P., counsel for the Underwriters, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives. With respect to Sections 6(c) and 6(d) above, Xxxxxxxx & Xxxxx LLP and Xxxxxx & Xxxxxx L.L.P. 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 Xxxxxxxx & Xxxxx LLP described in Section 6(c) above shall be rendered to the Underwriters at the request of the Company Parties and shall so state therein.
(e) The Representatives shall have received from Deloitte a “comfort letter” (the “initial comfort letter”) dated as of the date hereof and addressed to the Underwriters, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the most recent Time of Sale Prospectus, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(f) The Representatives shall have received from Deloitte a “bring-down comfort letter” (the “bring-down comfort letter”) dated as of the Closing Date or the Option Closing Date, as the case may be, and addressed to the Underwriters, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the Closing Date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter, and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(g) The Representatives Underwriters shall have received from Von Gonten a letter (the “Initial Expert Letter”)received, dated as on each of the date hereof, in form hereof and substance satisfactory to the Representatives, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offerings.
(h) The Representatives shall have received from Von Gonten a subsequent letter, dated as of the Closing Date Date, a letter dated the date hereof or the Option Closing Date, as the case may be, in form and substance satisfactory to the RepresentativesUnderwriters, which such 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 contained in the Registration Statement, the Time of Sale Prospectus and the Prospectus; provided that the letter shall cover the period from the Initial Expert Letter to delivered on the Closing Date or shall use a “cut-off date” not earlier than the Option Closing Date, as the case may be, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offeringsdate hereof.
(ih) The “lock-up” agreements, each substantially in the form of Exhibit A hereto, between the Representatives you and those certain stockholders, officers and directors of the Company named in Schedule IV hereto relating to sales and certain other dispositions of shares of stock of the Company Common Stock or certain other securities, delivered to the Representatives you on or before the date hereof, shall be in full force and effect on the Closing Date.
(ji) The Operative Agreements Underwriters shall have been received from each Selling Stockholder a properly completed and executed and delivered by the Company Entities party thereto and shall be in full force and effect on Internal Revenue Service (“IRS”) Form W-9 or an IRS Form W-8, as appropriate, together with all required attachments to such date.
(k) form. The several obligations of the Underwriters to purchase Additional Shares hereunder are subject to the delivery to the Representatives 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 Xxxxxxxx & Xxxxx 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 & Xxxxxx L.L.P., 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(d) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Deloitte, 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 three business days prior to such Option Closing Date;
(v) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Von Gonten, independent reserves engineers, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(h) hereof; and
(vi) such other documents as the Representatives you may reasonably request with respect to the good standing of the Company EntitiesCompany, 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 Additional Shares.
Appears in 1 contract
Conditions to the Underwriters’ Obligations. The respective obligations of the Company to sell Fund and the Shares to the Underwriters Investment Advisers and the several obligations of the Underwriters to purchase and pay for the Shares on the Closing Date hereunder are subject to the condition that the Registration Statement shall have become effective not later than [●] [a.m./p.m.] 10:00 A.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:
Date or, if earlier, the dates as of which information is given in the Registration Statement (iexclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), (1) in the case of the Fund, there shall not have occurred (A) any downgradingchange or decrease specified in the letter or letters referred to in paragraph (h) of this Section 6, nor shall or (B) any notice have been given of change, or any intended or potential downgrading or of any review for development involving a possible change that does not indicate the direction of the possible prospective change, in the rating accorded any condition, financial or otherwise, or in the earnings, business, prospects, properties or operations of the securities Fund, whether or not arising from transactions in the ordinary course of any business, from that set forth in the Time of Sale Prospectus and, (2) in the Company Entities by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) case of the Exchange Act; and
(ii) each Investment Adviser, 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, properties, operations, management or operations personnel of each Investment Adviser, whether or not arising from transactions in the Company Entities, taken as a wholeordinary course of business, from that set forth in the Time of Sale Prospectus thatProspectus, the effect of which in any case referred to in clause (1) or (2) above is, in the sole judgment of the Representatives’ judgment, is so material and adverse and that makes it, in the Representatives’ ' judgment, impracticable or inadvisable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Representatives Underwriters shall have received on the Closing Date a certificatecertificates, dated the Closing Date, addressed to of the Underwriters and signed by an chief executive officer and chief financial officer (or officers acting in similar capacities) of each of the CompanyFund and the Investment Advisers, to the effect set forth (i) that no stop order suspending the effectiveness of the Registration Statement is in Section 6(aeffect, and no proceedings for such purpose are, as of the Closing Date, pending before or threatened by the Commission, (ii) above and to the effect that the representations and warranties of made by the Company Parties Fund and the Investment Advisers contained in this Agreement are true and correct as of the Closing Date Date, (iii) that each of the Fund and that the Company Parties have Investment Advisers 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 (iv) as set forth in Section 6(a) above, with respect to the Fund or the Investment Advisers, as applicable. The Each officer signing and delivering such a certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) Each of the Investment Advisers and the Fund shall have performed all of their respective obligations to be performed hereunder on or prior to the Closing Date.
(d) The Representatives Underwriters shall have received on the Closing Date an opinion of Xxxxxxxx & Xxxxx Chapman and Cutler LLP, outside counsel for special couxxxx xxr the CompanyXxxx, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to the RepresentativesDate, substantially in the form attached hereto as Exhibit C.A and Exhibit B.
(de) The Representatives Underwriters shall have received on the Closing Date (x) an opinion of Xxxxxx & Xxxxxx L.L.P.Chapman and Cutler LLP, counsel for xxx Xxviser, xxxxtantially in the Underwritersform attached hereto as Exhibit C and (y) an opinion of Chapman and Cutler LLP, on bexxxx xx the Sub-Adxxxxx, substantially in the form attached hereto as Exhibit D, each dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives. With respect to Sections 6(c) and 6(d) above, Xxxxxxxx & Xxxxx LLP and Xxxxxx & Xxxxxx L.L.P. 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 Xxxxxxxx & Xxxxx LLP described in Section 6(c) above shall be rendered to the Underwriters at the request of the Company Parties and shall so state therein.
(e) The Representatives shall have received from Deloitte a “comfort letter” (the “initial comfort letter”) dated as of the date hereof and addressed to the Underwriters, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the most recent Time of Sale Prospectus, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offeringsDate.
(f) The Representatives Underwriters shall have received from Deloitte a “bring-down comfort letter” (the “bring-down comfort letter”) dated as of on the Closing Date or the Option favorable opinion of Weil, Gotshal & Manges LLP, counsel xxx txx Uxxxxxxiters, dated the Closing Date, and covering such matters as the case Underwriters shall reasonably request. In rendering the opinions described in Section 6(d) above, as to matters of Massachusetts law, Chapman and Cutler LLP may berely on xxx xxxnion xx Xxxgham McCutchen LLP, and addressed to the Underwriters, in so long as a xxxx xf xxxx xxxnion of Bingham McCutchen LLP is delivered xx xxx axx xx xx form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act you and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the Closing Date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letteryour counsel, and (iii) confirming in all material respects the conclusions such opinion of Bingham McCutchen LLP expressly perxxxx xxlxxxxx xxxreon by Chapman and findings set forth in the initial letterCutler LLP for purposes xx xxxderinx xxx foregoing opinion.
(g) The Representatives Underwriters shall have received on the Closing Date a certificate from Von Gonten a letter (the “Initial Expert Letter”), dated as duly authorized officer of each of the date hereofCustodian and the Transfer Agent, certifying that the Custodian Agreement, the Service Agreement and the Transfer Agency Agreement, as applicable, is in form full force and substance satisfactory to effect and is a valid and binding agreement of the RepresentativesCustodian or the Transfer Agent, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offeringsapplicable.
(h) The Representatives Underwriters shall have received from Von Gonten a subsequent letterreceived, dated as on each of the date hereof and the Closing Date Date, a letter dated the date hereof or the Option Closing Date, as the case may be, in form and substance satisfactory to the RepresentativesUnderwriters, which such 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 shall cover the period from the Initial Expert Letter to delivered on the Closing Date or shall use a "cut-off date" not earlier than the Option Closing Date, as the case may be, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offeringsdate hereof.
(i) The “lock-up” agreementsAll filings, each substantially applications and proceedings taken by the Fund and the Investment Advisers in connection with the form of Exhibit A hereto, between the Representatives organization and those certain stockholders, officers and directors registration of the Company named in Schedule IV hereto relating to sales Fund and certain other dispositions of shares of stock of the Company or certain other securities, delivered to Shares under the Representatives on or before Acts and the date hereof, applicable Rules and Regulations shall be satisfactory in full force form and effect on substance to you and counsel for the Closing DateUnderwriters.
(j) The Operative Agreements No action, suit, proceeding, inquiry or investigation shall have been executed and delivered instituted or threatened by the Commission which would adversely affect the Fund's standing as a registered investment company under the Investment Company Entities party thereto and shall be in full force and effect on such dateAct or the standing of the Adviser or Sub-Adviser as a registered investment adviser under the Advisers Act.
(k) The Shares shall have been duly authorized for listing on the New York Stock Exchange, subject only to official notice of issuance thereof. The several obligations of the Underwriters to purchase Additional Shares hereunder are subject to the delivery to the Representatives 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 Xxxxxxxx & Xxxxx 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 & Xxxxxx L.L.P., 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(d) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Deloitte, 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 three business days prior to such Option Closing Date;
(v) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Von Gonten, independent reserves engineers, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(h) hereof; and
(vi) such other documents as the Representatives you may reasonably request with respect to the good standing of the Company EntitiesFund and the Investment Advisers, 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 Additional Shares, and officers' certificates and opinions of Chapman and Cutler LLP, Bingham McCxxxxxx LLP axx Xxxl, Gotxxxx & Mxxxxx XXX to the exxxxt set forth xxxxx, except that such certificates and opinions shall be dated as of the applicable Option Closing Date and statements and opinions above contemplated to be given as of the Closing Date shall instead be made and given as of such Option Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (First Trust Intermediate Duration Preferred & Income Fund)
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 be have become effective not later than [●] [a.m./p.m.] (New York City time) on been issued under the date hereofSecurities 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 securities of the Company or any of the Company Entities its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) 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 Entitiesand its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus that, in the Representatives’ your judgment, is material and adverse and that makes it, in the Representatives’ your judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Representatives Underwriters shall have received (i) on the Closing Date a certificate, dated the Closing Date, addressed to the Underwriters Date and signed by an executive officer of the Company, to the effect set forth in Section 6(a5(a)(i) above and to the effect that the representations and warranties of the Company Parties contained in this Agreement are true and correct as of the Closing Date and that the Company Parties have 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) on each of the date hereof and the Closing Date, certificates, dated the date hereof or the Closing Date, as the case may be, and signed by the Chief Financial Officer of the Company, relating to certain financial information contained in the Time of Sale Prospectus. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Representatives Underwriters shall have received on the Closing Date an opinion of Xxxxxx, Xxxx & Xxxxxxxx & Xxxxx LLP, outside counsel for the Company, dated the Closing Date and addressed to the UnderwritersDate, in form and substance reasonably satisfactory to the Representatives, substantially Underwriters. The opinion of counsel for the Company described in Section 5(c) above shall be rendered to the form attached hereto as Exhibit C.Underwriters at the request of the Company and shall so state therein.
(d) The Representatives Underwriters shall have received on the Closing Date a negative assurance letter of Xxxxxx, Xxxx & Xxxxxxxx LLP, outside counsel for the Company, dated the Closing Date, in form and substance reasonably satisfactory to 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.
(e) The Underwriters shall have received on the Closing Date an opinion of Xxxx Xxxxx, Esq., Senior Counsel—Corporate and Securities for the Company, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriters.
(f) The Underwriters shall have received on the Closing Date, an opinion of Xxxxxxx Xxxxxx, Esq., Senior Counsel of Xxxxxx X. Xxxxxxxxx (UK) Limited, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriters.
(g) The Underwriters shall have received on the Closing Date (i) an opinion of Milbank, Tweed, Xxxxxx & Xxxxxx L.L.P.XxXxxx LLP, counsel for the Underwriters, dated the Closing Date and addressed to the UnderwritersDate, in form and substance reasonably satisfactory to the RepresentativesUnderwriters and (ii) a negative assurance letter of Milbank, Tweed, Xxxxxx & XxXxxx LLP, counsel for the Underwriters, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriters. With respect to Sections 6(c) and 6(dSection 5(d) above, Xxxxxx, Xxxx & Xxxxxxxx & Xxxxx LLP LLP, may state that their beliefs are based upon their participation in the preparation of the Time of Sale Prospectus, 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. With respect to Section 5(g)(ii) above, Milbank, Tweed, Xxxxxx & Xxxxxx L.L.P. 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 (other than the documents incorporated by reference) and upon review and discussion of the contents thereofthereof (including documents incorporated by reference), but are without independent check or verification, except as specified. The opinion of Xxxxxxxx & Xxxxx LLP described in Section 6(c) above shall be rendered to the Underwriters at the request of the Company Parties and shall so state therein.
(e) The Representatives shall have received from Deloitte a “comfort letter” (the “initial comfort letter”) dated as of the date hereof and addressed to the Underwriters, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the most recent Time of Sale Prospectus, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(f) The Representatives shall have received from Deloitte a “bring-down comfort letter” (the “bring-down comfort letter”) dated as of the Closing Date or the Option Closing Date, as the case may be, and addressed to the Underwriters, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the Closing Date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter, and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(g) The Representatives shall have received from Von Gonten a letter (the “Initial Expert Letter”), dated as of the date hereof, in form and substance satisfactory to the Representatives, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offerings.
(h) The Representatives Underwriters shall have received from Von Gonten a subsequent letterreceived, dated as on each of the date hereof and the Closing Date Date, letters dated the date hereof or the Option Closing Date, as the case may be, in form and substance satisfactory to the RepresentativesUnderwriters, which such letter shall cover from Ernst & Young LLP and Ernst & Young Australia, independent public accountants, containing statements and information of the period from type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the Initial Expert Letter to financial statements and certain financial information contained in the Registration Statement, the Time of Sale Prospectus and the Prospectus; provided that the letters delivered on the Closing Date or shall use a “cut-off date” not earlier than the Option Closing Date, as the case may be, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offeringsdate hereof.
(i) The “lock-up” agreements, each substantially in the form of Exhibit A hereto, between the Representatives you and those certain stockholdersshareholders, officers and directors of the Company named in Schedule IV hereto relating to sales and certain other dispositions of shares of stock of the Company Common Stock or certain other securities, delivered to the Representatives you on or before the date hereof, shall be in full force and effect on the Closing Date.
(j) The Operative Agreements Shares shall have been executed and delivered by approved for listing on the Company Entities party thereto and shall be in full force and effect on such dateNew York Stock Exchange, subject only to a notice of issuance at or prior to the Closing Date.
(k) The several obligations of the Underwriters to purchase Additional Shares hereunder are subject to the delivery to the Representatives 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(b5(b) hereof remains true and correct as of such Option Closing Date;
(ii) an opinion of Xxxxxx, Xxxx & Xxxxxxxx & Xxxxx 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(c5(c) hereof;
(iii) a letter from Xxxxxx, 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 letter required by Section 5(d) hereof;
(iv) an opinion of Xxxx Xxxxx, Esq., Senior Counsel—Corporate and Securities 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 Xxxxxxx Xxxxxx, Esq., Senior Counsel of Xxxxxx X. Xxxxxxxxx (UK) Limited, 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) an opinion of Milbank, Tweed, Xxxxxx & Xxxxxx L.L.P.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 6(d5(g) hereof;
(ivvii) a letter letters dated the Option Closing Date, in form and substance satisfactory to the RepresentativesUnderwriters, from DeloitteErnst & Young LLP and Ernst & Young Australia, independent public accountants, substantially in the same form and substance as the letter letters furnished to the Underwriters pursuant to Section 6(f5(e) hereof; provided that the letter 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;
(v) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Von Gonten, independent reserves engineers, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(h) hereof; and
(viviii) such other documents as the Representatives you may reasonably request with respect to the good standing of the Company EntitiesCompany, 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 Additional Shares.
Appears in 1 contract
Conditions to the Underwriters’ Obligations. The obligations of the Company 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 [●] [a.m./p.m.] (5:00 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 the Company Entities its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62for purposes of Rule 436(g)(2) of 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 Entitiesand its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus that, in the Representatives’ your judgment, is material and adverse and that makes it, in the Representatives’ your judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Representatives Underwriters shall have received on the Closing Date Date:
(i) a certificate, dated the Closing Date, addressed to the Underwriters Date and signed by an executive officer of the Company, Company to the effect set forth in Section 6(a6(a)(i) above and to the effect that the representations and warranties of the Company Parties contained in this Agreement are true and correct as of the Closing Date and that the Company Parties have 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;
(ii) a certificate, dated the Closing Date and signed by an officer of Ventures, who is authorized by corporate action to provide such certificate, to the effect that the representations and warranties of Ventures contained in this Agreement are true and correct as of the Closing Date and that Ventures 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;
(iii) a certificate, dated the Closing Date and signed by an officer of Parent, who is authorized by corporate action to provide such certificate, to the effect that the representations and warranties of Parent contained in this Agreement are true and correct as of the Closing Date; and
(iv) a certificate, dated the Closing Date and signed by Xxxxxxxxxx X. Xxxxx or Xxxx X. Xxxxxxx, as attorney-in-fact to the Selling Shareholders (except Ventures), to the effect that the representations and warranties of the Selling Shareholders (except Ventures) contained in this Agreement are true and correct as of the Closing Date and that the Selling Shareholders have complied with all of the agreements and satisfied all of the conditions on their part to be performed or satisfied hereunder on or before the Closing Date.
(c) The Representatives Underwriters shall have received on the Closing Date an opinion of Xxxxxxxx & Xxxxx LLP, outside counsel for the Company, dated the Closing Date and addressed Date, to the Underwriters, effect set forth in form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as Exhibit C.B.
(d) The Representatives Underwriters shall have received on the Closing Date an opinion of Xxxxxx Xxxxxxxx Xxxxx & Xxxxxx L.L.P.Xxxxxxxx LLP, counsel for the Parent and the Selling Shareholders, dated the Closing Date, to the effect set forth in Exhibit C.
(e) The Underwriters shall have received on the Closing Date an opinion of Xxxxx Xxxx & Xxxxxxxx, counsel for the Underwriters, dated the Closing Date and addressed Date, to the effect that:
(i) this Agreement has been duly authorized, executed and delivered by the Company, the Parent and Ventures;
(ii) the statements relating to legal matters, documents or proceedings included in the Time of Sale Prospectus and the Prospectus under the captions “Description of Capital Stock” (with respect to the Company’s charter and by-laws) and “Underwriters” fairly summarize in all material respects such matters, documents or proceedings; and
(iii) (A) in the opinion of such counsel, the Registration Statement, the Time of Sale Prospectus and the Prospectus (except for the broadly available road show, the financial statements and financial schedules and other financial and statistical data included therein, as to which such counsel need not express any belief) 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) 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 broadly available road show, 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 form the light of the circumstances under which they were made, not misleading or (3) the Prospectus (except for the financial statements and substance reasonably satisfactory 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 RepresentativesClosing 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. With respect to Sections 6(c) and 6(d) aboveSection 6(e)(iii), Xxxxxxxx & Xxxxx LLP and Xxxxxx & Xxxxxx L.L.P. counsel for the Underwriters may state that their opinions opinion and beliefs are belief is 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 opinions of Xxxxxxxx & Xxxxx LLP described in Section and Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP provided pursuant to Sections 6(c) and 6(d) above shall be rendered to the Underwriters at the request of the Company Parties Company, the Parent or the Selling Shareholders, as the case may be, and shall so state therein.
(ef) The Representatives Underwriters shall have received from Deloitte a “comfort letter” (the “initial comfort letter”) dated as received, on each of the date hereof and addressed to the UnderwritersClosing Date, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of a letter dated the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the most recent Time of Sale Prospectus, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(f) The Representatives shall have received from Deloitte a “bring-down comfort letter” (the “bring-down comfort letter”) dated as of the Closing Date or the Option Closing Date, as the case may be, and addressed to the Underwriters, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the Closing Date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter, and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(g) The Representatives shall have received from Von Gonten a letter (the “Initial Expert Letter”), dated as of the date hereof, in form and substance satisfactory to the Representatives, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offerings.
(h) The Representatives shall have received from Von Gonten a subsequent letter, dated as of the Closing Date or the Option Closing Date, as the case may be, in form and substance satisfactory to the RepresentativesUnderwriters, which such from Ernst & Young 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 financial statements and certain financial information contained in the Registration Statement and the Prospectus; provided that the letter shall cover the period from the Initial Expert Letter to delivered on the Closing Date or shall use a “cut-off date” not earlier than the Option Closing Date, as the case may be, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offeringsdate hereof.
(ig) The “lock-up” agreements, each substantially in the form of Exhibit A hereto, between you and the Representatives and those certain stockholdersSelling Shareholders, officers and directors of the Company named in Schedule IV hereto relating to sales and certain other dispositions of shares of stock of the Company Common Stock or certain other securities, delivered to the Representatives you on or before the date hereof, shall be in full force and effect on the Closing Date.
(j) The Operative Agreements shall have been executed and delivered by the Company Entities party thereto and shall be in full force and effect on such date.
(k) . The several obligations of the Underwriters to purchase Additional Shares hereunder are subject to the delivery to the Representatives 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 Xxxxxxxx & Xxxxx 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 & Xxxxxx L.L.P., 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(d) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Deloitte, 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 three business days prior to such Option Closing Date;
(v) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Von Gonten, independent reserves engineers, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(h) hereof; and
(vi) such other documents as the Representatives you may reasonably request with respect to the good standing of the Company EntitiesCompany, 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 Additional Shares.
Appears in 1 contract
Samples: Underwriting Agreement (Chipotle Mexican Grill 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 [●] [a.m./p.m.] 8:00 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 the Company Entities its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) 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 Entitiesand its subsidiaries (including the Operating Partnership), taken as a whole, from that set forth in the Time of Sale Prospectus that, in the Representatives’ your judgment, is material and adverse and that makes it, in the Representatives’ your judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Representatives Underwriters shall have received on the Closing Date a certificate, dated the Closing Date, addressed to the Underwriters Date and signed by an executive officer of the Company, to the effect set forth in Section 6(a5(a)(i) above and to the effect that the representations and warranties of the Company Parties contained in this Agreement are true and correct as of the Closing Date and that the Company Parties have 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 Representatives Underwriters shall have received on the Closing Date the opinions and negative assurance letter of Xxxxxx & Xxxxxxx LLP, outside counsel for the Transaction Entities, dated the Closing Date, with respect to the matters identified in Exhibit B-1, Exhibit B-2 and Exhibit B-3 hereto.
(d) The Underwriters shall have received on the Closing Date an opinion of Xxxxxxxx & Xxxxx Xxxxxxx LLP, outside Maryland corporate counsel for to the CompanyTransaction Entities, dated the Closing Date and addressed Date, with respect to the Underwriters, matters identified in form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as Exhibit C.C hereto.
(de) The Representatives Underwriters shall have received on the Closing Date an opinion and negative assurance letter of Xxxxxx & Xxxxxx L.L.P.Xxxxx Lovells US LLP, counsel for the Underwriters, dated the Closing Date and addressed to the UnderwritersDate, in the form and substance reasonably satisfactory to the RepresentativesUnderwriters. With respect to the negative assurance letters to be delivered pursuant to Sections 6(c5(c) and 6(d5(e) above, Xxxxxxxx Xxxxxx & Xxxxx Xxxxxxx LLP and Xxxxxx & Xxxxxx L.L.P. Xxxxx Lovells US 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 Xxxxxxxx & Xxxxx LLP described in Section 6(c) above shall be rendered to the Underwriters at the request of the Company Parties and shall so state therein.
(e) The Representatives shall have received from Deloitte a “comfort letter” (the “initial comfort letter”) dated as of the date hereof and addressed to the Underwriters, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the most recent Time of Sale Prospectus, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(f) The Representatives Underwriters shall have received from Deloitte a “bring-down comfort letter” (the “bring-down comfort letter”) dated as received, on each of the Closing Date or date hereof and the Option Closing Date, as the case may be, and addressed to the Underwriters, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the Closing Date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than three days prior to letter dated the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter, and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(g) The Representatives shall have received from Von Gonten a letter (the “Initial Expert Letter”), dated as of the date hereof, in form and substance satisfactory to the Representatives, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offerings.
(h) The Representatives shall have received from Von Gonten a subsequent letter, dated as of the Closing Date hereof or the Option Closing Date, as the case may be, in form and substance satisfactory to the RepresentativesUnderwriters, which such 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 contained in the Registration Statement, the Time of Sale Prospectus and the Prospectus; provided that the letter shall cover the period from the Initial Expert Letter to delivered on the Closing Date or shall use a “cut-off date” not earlier than two business days prior to the Option Closing Date, as the case may be, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offeringsdate hereof.
(ig) The “lock-up” agreements, each substantially in the form of Exhibit A hereto, between the Representatives you and those certain stockholdersshareholders, officers and directors of the Company named in Schedule IV hereto relating to restrictions on sales and certain other dispositions of shares of stock of the Company Common Stock or certain other securities, delivered to the Representatives you on or before the date hereofhereof (the “Lock-up Agreements”), shall be in full force and effect on the Closing Date.
(j) The Operative Agreements shall have been executed and delivered by the Company Entities party thereto and shall be in full force and effect on such date.
(kh) The several obligations of the Underwriters to purchase Additional Shares hereunder are subject to the delivery to the Representatives 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(b5(b) hereof remains true and correct as of such Option Closing Date;
(ii) an opinion the opinions and negative assurance letter of Xxxxxxxx Xxxxxx & Xxxxx Xxxxxxx LLP, outside counsel for the CompanyTransaction Entities, 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(c5(c) hereof;
(iii) an opinion of Xxxxxx & Xxxxxx L.L.P.Xxxxxxx LLP, Maryland corporate counsel to the Transaction Entities, 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 Xxxxx Lovells US 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(d5(e) hereof;
(ivv) a letter dated the Option Closing Date, in form and substance satisfactory to the RepresentativesUnderwriters, from DeloitteErnst & Young LLP, independent public accountants, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(f5(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;
(v) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Von Gonten, independent reserves engineers, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(h) hereof; and
(vi) such other documents as the Representatives you may reasonably request with respect to the good standing of the Company Transaction Entities, 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 Additional Shares.
Appears in 1 contract
Samples: Underwriting Agreement (American Assets Trust, L.P.)
Conditions to the Underwriters’ Obligations. The respective obligations of the Company to sell Fund and the Shares to the Underwriters Investment Advisers and the several obligations of the Underwriters to purchase and pay for the Shares on the Closing Date hereunder are subject to the condition that the Registration Statement shall have become effective not later than [●] [a.m./p.m.] 10:00 A.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:
Date or, if earlier, the dates as of which information is given in the Registration Statement (iexclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), (1) in the case of the Fund, there shall not have occurred (A) any downgradingchange or decrease specified in the letter or letters referred to in paragraph (h) of this Section 6, nor shall or (B) any notice have been given of change, or any intended or potential downgrading or of any review for development involving a possible change that does not indicate the direction of the possible prospective change, in the rating accorded any condition, financial or otherwise, or in the earnings, business, prospects, properties or operations of the securities Fund, whether or not arising from transactions in the ordinary course of any business, from that set forth in the Time of Sale Prospectus and, (2) in the Company Entities by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) case of the Exchange Act; and
(ii) each Investment Adviser, 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, properties, operations, management or operations personnel of each Investment Adviser, whether or not arising from transactions in the Company Entities, taken as a wholeordinary course of business, from that set forth in the Time of Sale Prospectus thatProspectus, the effect of which in any case referred to in clause (1) or (2) above is, in the sole judgment of the Representatives’ judgment, is so material and adverse and that makes it, in the Representatives’ ' judgment, impracticable or inadvisable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Representatives Underwriters shall have received on the Closing Date a certificatecertificates, dated the Closing Date, addressed to of the Underwriters and signed by an chief executive officer and chief financial officer (or officers acting in similar capacities) of each of the CompanyFund and the Investment Advisers, to the effect set forth (i) that no stop order suspending the effectiveness of the Registration Statement is in Section 6(aeffect, and no proceedings for such purpose are, as of the Closing Date, pending before or threatened by the Commission, (ii) above and to the effect that the representations and warranties of made by the Company Parties Fund and the Investment Advisers contained in this Agreement are true and correct as of the Closing Date Date, (iii) that each of the Fund and that the Company Parties have Investment Advisers 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 (iv) as set forth in Section 6(a) above, with respect to the Fund or the Investment Advisers, as applicable. The Each officer signing and delivering such a certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) Each of the Investment Advisers and the Fund shall have performed all of their respective obligations to be performed hereunder on or prior to the Closing Date.
(d) The Representatives Underwriters shall have received on the Closing Date an opinion of Xxxxxxxx & Xxxxx Chapman and Cutler LLP, outside counsel for special couxxxx xxr the CompanyXxxx, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to the RepresentativesDate, substantially in the form attached hereto as Exhibit C.A and Exhibit B.
(de) The Representatives Underwriters shall have received on the Closing Date (x) an opinion of Xxxxxx & Xxxxxx L.L.P.Chapman and Cutler LLP, counsel for xxx Xxviser, substantially in the form attached hereto as Exhibit C and (y) an opinion of Dechert LLP, counsel for the UnderwritersSub-Adviser, substantially in the form attached hereto as Exhibit D, each dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives. With respect to Sections 6(c) and 6(d) above, Xxxxxxxx & Xxxxx LLP and Xxxxxx & Xxxxxx L.L.P. 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 Xxxxxxxx & Xxxxx LLP described in Section 6(c) above shall be rendered to the Underwriters at the request of the Company Parties and shall so state therein.
(e) The Representatives shall have received from Deloitte a “comfort letter” (the “initial comfort letter”) dated as of the date hereof and addressed to the Underwriters, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the most recent Time of Sale Prospectus, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offeringsDate.
(f) The Representatives Underwriters shall have received from Deloitte a “bring-down comfort letter” (the “bring-down comfort letter”) dated as of on the Closing Date or the Option favorable opinion of Weil, Gotshal & Manges LLP, counsel for the Uxxxxxxiters, dated the Closing Date, and covering such matters as the case Underwriters shall reasonably request. In rendering the opinions described in Section 6(d) above, as to matters of Massachusetts law, Chapman and Cutler LLP may berely on xxx xxxnion xx Xxxgham McCutchen LLP, and addressed to the Underwriters, in so long as a xxxx xf xxxx xxxnion of Bingham McCutchen LLP is delivered xx xxx axx xx xx form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act you and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the Closing Date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letteryour counsel, and (iii) confirming in all material respects the conclusions such opinion of Bingham McCutchen LLP expressly perxxxx xxlxxxxx xxxreon by Chapman and findings set forth in the initial letterCutler LLP for purposes xx xxxderinx xxx foregoing opinion.
(g) The Representatives Underwriters shall have received on the Closing Date a certificate from Von Gonten a letter (the “Initial Expert Letter”), dated as duly authorized officer of each of the date hereofCustodian and the Transfer Agent, certifying that the Custodian Agreement and the Transfer Agency Agreement, as applicable, is in form full force and substance satisfactory to effect and is a valid and binding agreement of the RepresentativesCustodian or the Transfer Agent, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offeringsapplicable.
(h) The Representatives Underwriters shall have received from Von Gonten a subsequent letterreceived, dated as on each of the date hereof and the Closing Date Date, a letter dated the date hereof or the Option Closing Date, as the case may be, in form and substance satisfactory to the RepresentativesUnderwriters, which such 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 shall cover the period from the Initial Expert Letter to delivered on the Closing Date or shall use a "cut-off date" not earlier than the Option Closing Date, as the case may be, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offeringsdate hereof.
(i) The “lock-up” agreementsAll filings, each substantially applications and proceedings taken by the Fund and the Investment Advisers in connection with the form of Exhibit A hereto, between the Representatives organization and those certain stockholders, officers and directors registration of the Company named in Schedule IV hereto relating to sales Fund and certain other dispositions of shares of stock of the Company or certain other securities, delivered to Shares under the Representatives on or before Acts and the date hereof, applicable Rules and Regulations shall be satisfactory in full force form and effect on substance to you and counsel for the Closing DateUnderwriters.
(j) The Operative Agreements No action, suit, proceeding, inquiry or investigation shall have been executed and delivered instituted or threatened by the Commission which would adversely affect the Fund's standing as a registered investment company under the Investment Company Entities party thereto and shall be in full force and effect on such dateAct or the standing of the Adviser or Sub-Adviser as a registered investment adviser under the Advisers Act.
(k) The Shares shall have been duly authorized for listing on the New York Stock Exchange, subject only to official notice of issuance thereof. The several obligations of the Underwriters to purchase Additional Shares hereunder are subject to the delivery to the Representatives 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 Xxxxxxxx & Xxxxx 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 & Xxxxxx L.L.P., 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(d) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Deloitte, 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 three business days prior to such Option Closing Date;
(v) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Von Gonten, independent reserves engineers, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(h) hereof; and
(vi) such other documents as the Representatives you may reasonably request with respect to the good standing of the Company EntitiesFund and the Investment Advisers, 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 Additional Shares, and officers' certificates and opinions of Chapman and Cutler LLP, Dechert LLP, Xxxxxam McXxxxxxn LLP xxx Xxxl, Gotxxxx & Mxxxxx XXX to the effect set forth xxxxx, except that such certificates and opinions shall be dated as of the applicable Option Closing Date and statements and opinions above contemplated to be given as of the Closing Date shall instead be made and given as of such Option Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (First Trust MLP & Energy Income Fund)
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 [●] [a.m./p.m.] 12:00 noon (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 any of the Company Entities by any “"nationally recognized statistical rating organization,” " as such term is defined in Section 3(a)(62for purposes of Rule 436(g)(2) of 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 Entitiesand its subsidiaries, taken as a whole, from that set forth in the Time Prospectus (exclusive of Sale Prospectus any amendments or supplements thereto subsequent to the date of this Agreement) that, in the Representatives’ your judgment, is material and adverse and that makes it, in the Representatives’ your judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Representatives Underwriters shall have received on the Closing Date a certificate, dated the Closing Date, addressed to the Underwriters Date and signed by an executive officer of the Company, to the effect set forth in Section 6(a5(a)(i) above and to the effect that the representations and warranties of the Company Parties contained in this Agreement are true and correct as of the Closing Date and that the Company Parties have 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 Representatives shall have received on the Closing Date an opinion of Xxxxxxxx & Xxxxx LLP, outside counsel for the Company, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as Exhibit C.
(d) The Representatives Underwriters shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxx L.L.P., counsel for the Underwriters, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives. With respect to Sections 6(c) and 6(d) above, Xxxxxxx Xxxxxxxx & Xxxxx LLP and Xxxxxx & Xxxxxx L.L.P. may state that their opinions and beliefs are based upon their participation in the preparation of the Registration StatementXxxxxx, 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 Xxxxxxxx & Xxxxx LLP described in Section 6(c) above shall be rendered to the Underwriters at the request of the Company Parties and shall so state therein.
(e) The Representatives shall have received from Deloitte a “comfort letter” (the “initial comfort letter”) dated as of the date hereof and addressed to the Underwriters, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the most recent Time of Sale Prospectus, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(f) The Representatives shall have received from Deloitte a “bring-down comfort letter” (the “bring-down comfort letter”) dated as of the Closing Date or the Option Closing Date, as the case may be, and addressed to the Underwriters, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the Closing Date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter, and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(g) The Representatives shall have received from Von Gonten a letter (the “Initial Expert Letter”), dated as of the date hereof, in form and substance satisfactory to the Representatives, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offerings.
(h) The Representatives shall have received from Von Gonten a subsequent letter, dated as of the Closing Date or the Option Closing Date, as the case may be, in form and substance satisfactory to the Representatives, which such letter shall cover the period from the Initial Expert Letter to the Closing Date or the Option Closing Date, as the case may be, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offerings.
(i) The “lock-up” agreements, each substantially in the form of Exhibit A hereto, between the Representatives and those certain stockholders, officers and directors of the Company named in Schedule IV hereto relating to sales and certain other dispositions of shares of stock of the Company or certain other securities, delivered to the Representatives on or before the date hereof, shall be in full force and effect on the Closing Date.
(j) The Operative Agreements shall have been executed and delivered by the Company Entities party thereto and shall be in full force and effect on such date.
(k) The several obligations of the Underwriters to purchase Additional Shares hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate, dated the Option Closing Date and signed by an executive officer of the Company, confirming that the certificate delivered on the Closing Date pursuant to Section 6(b) hereof remains true and correct as of such Option Closing Date;
(ii) an opinion of Xxxxxxxx & Xxxxx LLPProfessional Corporation, outside counsel for the Company, dated the Option Closing Date, relating to the Additional Shares effect that:
(i) 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 purchased 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 Option Closing Date and otherwise qualification, except to the same 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 the opinion required by Section 6(c) hereofa whole;
(iii) an opinion the authorized capital stock of Xxxxxx & Xxxxxx L.L.P., counsel for the Underwriters, dated the Option Closing Date, relating Company conforms as to legal matters to the Additional Shares to be purchased on such Option Closing Date and otherwise to description thereof contained in the same effect as the opinion required by Section 6(d) hereofProspectus;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory shares of Common Stock outstanding prior to the Representativesissuance of the Shares have been duly authorized and are validly issued, from Deloitte, independent public accountants, substantially in the same form fully paid 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 “cutnon-off date” not earlier than three business days prior to such Option Closing Dateassessable;
(v) a letter dated all of the Option Closing Dateissued shares of capital stock of each subsidiary of the Company have been duly and validly authorized and issued, in form are fully paid and substance satisfactory to non-assessable and are owned directly by the RepresentativesCompany, from Von Gontenfree and clear of all liens, independent reserves engineersencumbrances, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(h) hereof; andequities or claims;
(vi) such other documents as the Representatives may reasonably request Shares have been duly authorized and, when issued and delivered in accordance with respect to the good standing terms of the Company Entitiesthis Agreement, the due authorization will be validly issued, fully paid and issuance of the Additional Shares to be sold on such Option Closing Date non-assessable, and other matters related to the issuance of such Additional Shares will not be subject to any preemptive or similar rights other than such rights as have been validly waived;
(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 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, and is listed as an Exhibit to the Registration Statement 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 federal securities laws and 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 "Business--Commercial Relationships," "Business--Facilities," "Business--Legal Proceedings," "Management," "Certain Transactions," "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;
Appears in 1 contract
Conditions to the Underwriters’ Obligations. The obligations of the Company to sell the Shares to the Underwriters and the several obligations of the Underwriters to purchase and pay for the Shares on the Closing Date are subject to the condition that the Registration Statement shall have become effective not later than [●—] [a.m./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 the Company Entities its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) 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, management or operations of the Company Entitiesand its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus and the Prospectus that, in the judgment of the Representatives’ judgment, is material and adverse and that makes it, in the judgment of the Representatives’ judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus and the Prospectus.
(b) The Representatives Underwriters shall have received on the Closing Date a certificate, dated the Closing Date, addressed to the Underwriters Date and signed on behalf of the Company by an executive officer of the Company, to the effect set forth in Section 6(a5(a)(i) above and to the effect that the representations and warranties of the Company Parties contained in this Agreement are true and correct as of the Closing Date and that the Company Parties have 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 Representatives Underwriters shall have received on the Closing Date an opinion of Xxxxxxxx & Xxxxx Xxxxxx LLP, outside counsel for the Company, dated the Closing Date and addressed to the UnderwritersDate, in form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as Exhibit C..
(d) The Representatives Underwriters shall have received on the Closing Date an opinion of Xxxxxx Fenwick & Xxxxxx L.L.P.West LLP, counsel for the Underwriters, dated the Closing Date and addressed to the UnderwritersDate, in form and substance reasonably satisfactory to the Representatives. With respect to Sections 6(c5(c) and 6(d(d) above, Xxxxxxxx & Xxxxx Xxxxxx LLP and Xxxxxx Fenwick & Xxxxxx L.L.P. West 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 Xxxxxxxx & Xxxxx Xxxxxx LLP described in Section 6(c5(c) above shall be rendered to the Underwriters at the request of the Company Parties and shall so state therein.
(e) The Representatives Underwriters shall have received from Deloitte a “comfort letter” (the “initial comfort letter”) dated as received, on each of the date hereof and addressed to the UnderwritersClosing Date, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of a letter dated the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the most recent Time of Sale Prospectus, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(f) The Representatives shall have received from Deloitte a “bring-down comfort letter” (the “bring-down comfort letter”) dated as of the Closing Date or the Option Closing Date, as the case may be, and addressed to the Underwriters, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the Closing Date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter, and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(g) The Representatives shall have received from Von Gonten a letter (the “Initial Expert Letter”), dated as of the date hereof, in form and substance satisfactory to the Representatives, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offerings.
(h) The Representatives shall have received from Von Gonten a subsequent letter, dated as of the Closing Date or the Option Closing Date, as the case may be, in form and substance satisfactory to the RepresentativesUnderwriters, which such from Deloitte & Touche LLP, independent registered public accounting 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 shall cover the period from the Initial Expert Letter to delivered on the Closing Date or shall use a “cut-off date” not earlier than one day prior to the Option Closing Date, as the case may be, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offeringsdate hereof.
(if) The “lock-up” agreements, each substantially in the form of Exhibit A hereto, between the Representatives and those executed by certain stockholderssecurity holders, officers and directors of the Company named in Schedule IV hereto relating to sales and certain other dispositions of shares of stock of the Company Common Stock or certain other securities, delivered to the Representatives Xxxxxx Xxxxxxx on or before the date hereof, shall be in full force and effect on the Closing Date.
(jg) The Operative Agreements chief financial officer of the Company shall have been executed delivered to the Underwriters, on each of the date hereof and delivered by on the Company Entities party thereto and shall be Closing Date, a certificate in full force and effect on such datea form reasonably acceptable to the Representatives.
(kh) The several obligations of the Underwriters to purchase Additional Shares hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate, dated the Option Closing Date and signed by an executive officer of the Company, confirming that the certificate delivered on the Closing Date pursuant to Section 6(b) hereof remains true and correct as of such Option Closing Date;
(ii) an opinion of Xxxxxxxx & Xxxxx 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 & Xxxxxx L.L.P., 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(d) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Deloitte, 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 three business days prior to such Option Closing Date;
(v) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Von Gonten, independent reserves engineers, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(h) hereof; and
(vi) such other documents as the Representatives may reasonably request with respect to the good standing of the Company EntitiesCompany, 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 Additional Shares.
Appears in 1 contract
Conditions to the Underwriters’ Obligations. The obligations of the Company 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 [●] [a.m./p.m.] 1:30 p.m. (New York City time) on the date hereof. The several obligations of the Underwriters are subject to the following further conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company's securities of any of the Company Entities by any “"nationally recognized statistical rating organization,” " as such term is defined in Section 3(a)(62for purposes of Rule 436(g)(2) of 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 Entities, taken as a wholeCompany, from that set forth in the Time Prospectus (exclusive of Sale Prospectus any amendments or supplements thereto subsequent to the date of this Agreement) that, in the Representatives’ your judgment, is material and adverse and that makes it, in the Representatives’ your judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Representatives Underwriters shall have received on the Closing Date a certificate, dated the Closing Date, addressed to the Underwriters Date and signed by an executive officer of the Company, to the effect set forth in Section 6(a6(a)(i) above and to the effect that the representations and warranties of the Company Parties contained in this Agreement are true and correct as of the Closing Date and that the Company Parties have 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 Representatives Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by the Selling Stockholder (or by their attorney-in-fact on their behalf), 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 each 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.
(d) The Underwriters shall have received on the Closing Date an opinion of Xxxxxxxx & Xxxxx Xxxxxx Godward LLP, outside counsel for the Company, dated the Closing Date and addressed Date, to the Underwriterseffect that:
(i) the Company has been duly incorporated, is validly existing as a corporation in form good standing under the laws of the jurisdiction of its incorporation, has the corporate power and substance reasonably satisfactory authority to own its property and to conduct its business as described in the Prospectus and to 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 Representatives, substantially extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the form attached hereto as Exhibit C.Company;
(dii) The Representatives shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxx L.L.P., counsel for the Underwriters, dated the Closing Date and addressed to the Underwriters, except as described in form and substance reasonably satisfactory to the Representatives. With respect to Sections 6(c) and 6(d) above, Xxxxxxxx & Xxxxx LLP and Xxxxxx & Xxxxxx L.L.P. 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 thereofto such counsel's knowledge, but are without independent check or verification, except as specified. The opinion of Xxxxxxxx & Xxxxx LLP described in Section 6(c) above shall be rendered to the Underwriters at the request of the Company Parties has no subsidiaries and shall so state therein.does not own any equity interest in any other corporation, partnership, limited liability company or other entity;
(e) The Representatives shall have received from Deloitte a “comfort letter” (the “initial comfort letter”) dated as of the date hereof and addressed to the Underwriters, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the most recent Time of Sale Prospectus, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(f) The Representatives shall have received from Deloitte a “bring-down comfort letter” (the “bring-down comfort letter”) dated as of the Closing Date or the Option Closing Date, as the case may be, and addressed to the Underwriters, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the Closing Date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter, and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(g) The Representatives shall have received from Von Gonten a letter (the “Initial Expert Letter”), dated as of the date hereof, in form and substance satisfactory to the Representatives, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offerings.
(h) The Representatives shall have received from Von Gonten a subsequent letter, dated as of the Closing Date or the Option Closing Date, as the case may be, in form and substance satisfactory to the Representatives, which such letter shall cover the period from the Initial Expert Letter to the Closing Date or the Option Closing Date, as the case may be, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offerings.
(i) The “lock-up” agreements, each substantially in the form of Exhibit A hereto, between the Representatives and those certain stockholders, officers and directors of the Company named in Schedule IV hereto relating to sales and certain other dispositions of shares of authorized capital stock of the Company or certain other securities, delivered conforms as to legal matters to the Representatives on or before description thereof contained in the date hereof, shall be in full force and effect on the Closing Date.Prospectus;
(jiv) The Operative Agreements shall 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) 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 to such counsel's knowledge, similar rights;
(vi) this Agreement has been duly authorized, executed and delivered by the Company Entities party thereto and shall be in full force and effect on such date.Company;
(kvii) The several 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 applicable state securities and blue sky laws, as to which such counsel need not express an opinion) or the certificate of incorporation or by-laws of the Underwriters Company or, to purchase Additional Shares hereunder are subject such counsel's knowledge, any agreement or other instrument binding upon the Company that is material to the delivery to 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 or, to the certificate delivered on the Closing Date pursuant to Section 6(b) hereof remains true and correct as best of such Option Closing Datecounsel's knowledge, any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Company, 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 have been obtained under the Securities Act or 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;
(iiviii) an opinion the statements (A) in the Prospectus under the captions " Risk Factors--the Price of Xxxxxxxx & Xxxxx LLP, outside counsel our Stock Could Decrease as a Result of Shares Being Sold in the Market after this Offering," "Business--MIPS License and Intellectual Property," "Description of Capital Stock," "Shares Eligible for the Company, dated the Option Closing Date, relating Future Sale" and "Underwriters" to the Additional Shares to be purchased on such Option Closing Date extent of the description of this Agreement, and otherwise to (B) in the same effect as the opinion required by Section 6(c) hereof;
(iii) an opinion of Xxxxxx & Xxxxxx L.L.P., counsel for the Underwriters, dated the Option Closing Date, relating to the Additional Shares to be purchased on such Option Closing Date Registration Statement in Items 14 and otherwise to the same effect as the opinion required by Section 6(d) hereof;
(iv) a letter dated the Option Closing Date15, in form and substance satisfactory each case insofar as such statements constitute summaries of the legal matters, documents or proceedings referred to therein, fairly present the Representatives, from Deloitte, 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 three business days prior to such Option Closing Date;
(v) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Von Gonten, independent reserves engineers, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(h) hereof; and
(vi) such other documents as the Representatives may reasonably request information called for with respect to such legal matters, documents and proceedings and fairly summarize the good standing matters referred to therein to the extent required under the Securities Act and the applicable rules and regulations of the Company Entities, 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 Additional Shares.Commission thereunder;
Appears in 1 contract
Samples: Underwriting Agreement (Quantum Effect Devices Inc)
Conditions to the Underwriters’ Obligations. The obligations of the Company 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 [●] [a.m./p.m.] 3:00 p.m. (New York City time) on 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 any of the Company Entities by any “"nationally recognized statistical rating organization,” " as such term is defined in Section 3(a)(62for purposes of Rule 436(g)(2) of 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 Entities, taken as a whole, from that set forth in the Time Prospectus (exclusive of Sale Prospectus any amendments or supplements thereto subsequent to the date of this Agreement) that, in the Representatives’ your judgment, is material and adverse and that makes it, in the Representatives’ your judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Representatives Underwriters shall have received on the Closing Date a certificate, dated the Closing Date, addressed to the Underwriters Date and signed by an the chief executive officer and the chief financial officer of the Company, to the effect set forth in Section 6(a6(a)(i) above and to the effect that the representations and warranties of the Company Parties contained in this Agreement are true and correct as of the Closing Date and that the Company Parties have 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 may rely upon the best of his or her their knowledge as to proceedings threatened.
(c) The Representatives Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by the Selling Shareholders (or by their attorney-in-fact on their behalf), to the effect that the representations and warranties of the Selling Shareholders contained in this Agreement are true and correct as of the Closing Date and that each Selling Shareholder has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date.
(d) The Underwriters shall have received on the Closing Date an opinion of Xxxxxxxx Brobxxx, Xxlexxx & Xxxxx LLPXarrxxxx XXX, outside counsel for the Company, dated the Closing Date and addressed Date, to the Underwriterseffect that:
(i) the Company has been duly incorporated, is validly existing as a corporation in form good standing under the laws of the state of California, has the corporate power and substance reasonably satisfactory authority to own its property and to conduct its business as described in the Registration Statement and Prospectus (and any amendment or supplement thereto) 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 Representativesextent that the failure to so qualify or be in good standing would not have a material adverse effect on the financial condition, substantially in business, properties or results of operations of the form attached hereto as Exhibit C.Company;
(dii) The Representatives shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxx L.L.P., counsel for the Underwriters, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives. With respect to Sections 6(c) and 6(d) above, Xxxxxxxx & Xxxxx LLP and Xxxxxx & Xxxxxx L.L.P. may state that their opinions and beliefs are based upon their participation in the preparation of the Registration Statementsuch counsel's knowledge, the Time of Sale Prospectus and Company does not own or control, directly or indirectly, any corporation, association or other entity;
(iii) 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 Xxxxxxxx & Xxxxx LLP described in Section 6(c) above shall be rendered to the Underwriters at the request authorized capital stock of the Company Parties and shall so state therein.
(e) The Representatives shall have received from Deloitte a “comfort letter” (the “initial comfort letter”) dated as of the date hereof and addressed to the Underwriters, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, Prospectus is as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given set forth in the most recent Time description thereof set forth under the caption "Description of Sale Capital Stock" in the Prospectus, as ;
(iv) the shares of a date not more than three days Common Stock (including the Shares to be sold by the Selling Shareholders) outstanding prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(f) The Representatives shall have received from Deloitte a “bring-down comfort letter” (the “bring-down comfort letter”) dated as issuance of the Closing Date or Shares to be sold by the Option Closing Date, as the case may be, and addressed to the Underwriters, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act Company have been duly authorized and are in compliance with the applicable requirements relating validly issued and non-assessable and, to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commissionsuch counsel's knowledge, (ii) statingfully paid; and, to such counsel's knowledge, except as of the Closing Date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given set forth in the Prospectus, as the Company does not have outstanding any options to purchase, or any preemptive rights arising under the Company's Restated and Amended Articles of a date not more than three days prior Incorporation (the "Articles") or other rights to the date subscribe for or to purchase, any securities or obligations convertible into, or any contracts or commitments to issue or sell, shares of the bring-down letter)Company's capital stock or any such options, rights, convertible securities or obligations; and all outstanding shares of capital stock were not issued in violation of any preemptive rights or, to such counsel's knowledge, rights of first refusal of the conclusions and findings of such firm with respect to the financial information and Company or other matters covered by the initial letter, and (iii) confirming in all material respects the conclusions and findings set forth in the initial lettersimilar rights.
(gv) The Representatives shall the Shares to be sold by the Company have received from Von Gonten a letter (been duly authorized and, when issued and delivered in accordance with the “Initial Expert Letter”)terms of this Agreement, dated as of will be validly issued, fully paid and non-assessable, and the date hereof, in form and substance satisfactory to the Representatives, stating the conclusions and findings issuance of such firm with respect Shares will not be subject to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offerings.
(hA) The Representatives shall have received from Von Gonten a subsequent letter, dated as of any preemptive rights arising under the Closing Date Articles or the Option Closing DateCalifornia General Corporation Law or (B) to such counsel's knowledge, as the case may be, in form and substance satisfactory any similar rights that entitle or will entitle any person to the Representatives, which such letter shall cover the period from the Initial Expert Letter to the Closing Date or the Option Closing Date, as the case may be, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offerings.
(i) The “lock-up” agreements, each substantially in the form of Exhibit A hereto, between the Representatives and those certain stockholders, officers and directors of the Company named in Schedule IV hereto relating to sales and certain other dispositions of acquire any shares of capital stock of the Company or certain other securities, delivered to upon the Representatives on or before issuance and sale of the date hereof, shall be in full force and effect on Shares by the Closing Date.Company;
(jvi) The Operative Agreements shall have this Agreement has been duly authorized, executed and delivered by the Company Entities party thereto and shall be in full force and effect on such date.
(k) The several obligations of the Underwriters to purchase Additional Shares hereunder are subject to the delivery to 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;
(iivii) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement will not (A) contravene the Articles or bylaws of the Company or (B) to such counsel's knowledge, constitute a breach or default under any agreement or other instrument binding upon the Company that is an opinion of Xxxxxxxx & Xxxxx LLP, outside counsel for the Company, dated the Option Closing Date, relating exhibit to the Additional Shares Registration Statement, or (C) result in any violation of an existing provision of California or federal law or regulation (other than applicable state securities and Blue Sky laws, as to be purchased on which such Option Closing Date counsel need express no opinion) or any ruling, judgment, order or decree known to such counsel and otherwise applicable to the same effect as the opinion required by Section 6(c) hereofCompany or any of its properties;
(iiiviii) an opinion of Xxxxxx & Xxxxxx L.L.P.no consent, counsel approval, authorization or order of, or qualification with, any governmental body or agency is required for the Underwritersperformance by the Company of its obligations under this Agreement, dated except (A) as have been obtained under the Option Closing DateSecurities Act or the Exchange Act, relating to the Additional Shares to or (B) such as may be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(d) hereofthe securities or Blue Sky laws governing the purchase and distribution of the Shares, as to which such counsel need express no opinion;
(ivix) a letter dated the Option Closing Datestatements (A) in the Prospectus under the captions "Risk Factors--Shares Eligible for Future Sale," "Business--Customers and Strategic Relationships (except that such counsel need express an opinion only as to the second paragraph in such section)," "Management--Employee Benefit Plans (to the extent of the description of the terms of the employee benefit plans)," "Management--Limitation of Liability and Indemnification Matters," "Certain Transactions" (except that such counsel need express an opinion only as to the paragraph entitled "Development Agreement with Cisco Systems"), "Description of Capital Stock" and "Shares Eligible for Future Sale" and (B) in the Registration Statement in Items 14 and 15, in form and substance satisfactory each case insofar as such statements constitute summaries of the legal matters, documents or proceedings referred to therein, fairly present the Representatives, from Deloitte, 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 three business days prior to such Option Closing Date;
(v) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Von Gonten, independent reserves engineers, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(h) hereof; and
(vi) such other documents as the Representatives may reasonably request information called for with respect to such legal matters, documents and proceedings and fairly summarize the good standing of the Company Entities, the due authorization and issuance of the Additional Shares matters referred to be sold on such Option Closing Date and other matters related to the issuance of such Additional Shares.therein;
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 obligation of the Underwriters hereunder to purchase and pay for the Firm Shares on the Closing Date are or the Additional Shares on the Option Closing Date, as the case may be, as provided herein is subject to the condition that the Registration Statement shall have become effective not later than [●] [a.m./p.m.] (New York City time) on the date hereof. The several obligations accuracy of the Underwriters are subject representations and warranties of the Company herein contained, to the performance by the Company of its obligations hereunder, and to the following further conditions:.
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date or the Option Closing Date, as the case may be:
(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 the Company Entities Subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) 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 Entitiesand the Subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus as of the date of this Agreement that, in the Representatives’ your judgment, is material and adverse and that makes it, in the Representatives’ your judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Representatives Underwriters shall have received on the Closing Date or the Option Closing Date, as the case may be, a certificate, dated the Closing Daterespective dates of delivery thereof, addressed to the Underwriters and signed by an executive officer of the CompanyCompany and the Operating Partnership, to the effect set forth in Section 6(aSections 5(a)(i) and 5(a)(ii) above and to the effect that the representations and warranties of the Company Parties and the Operating Partnership contained in this Agreement are true and correct as of the Closing Date or the Option Closing Date, as the case may be, and that the Company Parties and the Operating Partnership have complied with all of the agreements and satisfied all of the conditions on its their respective part to be performed or satisfied hereunder on or before the Closing Date or the Option Closing Date, as the case may be. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Representatives Underwriters shall have received received, on each of the Closing Date an opinion of Xxxxxxxx & Xxxxx LLPdate hereof, outside counsel for the Company, dated the Closing Date and addressed to the UnderwritersOption Closing Date, as the case may be, a certificate dated the respective dates of delivery thereof, and signed by the Chief Financial Officer of the Company and the Operating Partnership, in the form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as Exhibit C.Underwriters and their counsel.
(d) The Representatives Underwriters shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxx L.L.P., counsel for the Underwriters, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives. With respect to Sections 6(c) and 6(d) above, Xxxxxxxx & Xxxxx LLP and Xxxxxx & Xxxxxx L.L.P. 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 Xxxxxxxx & Xxxxx LLP described in Section 6(c) above shall be rendered to the Underwriters at the request of the Company Parties and shall so state therein.
(e) The Representatives shall have received from Deloitte a “comfort letter” (the “initial comfort letter”) dated as of the date hereof and addressed to the Underwriters, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the most recent Time of Sale Prospectus, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(f) The Representatives shall have received from Deloitte a “bring-down comfort letter” (the “bring-down comfort letter”) dated as of the Closing Date or the Option Closing Date, as the case may be, the opinions of Xxxxxx & Xxxxxxx LLP, outside counsel for the Company and addressed to the UnderwritersOperating Partnership, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of dated the Closing Date (oror the Option Closing Date, as the case may be, with respect to the matters involving changes identified in Exhibits A-1 and A-2 hereto. The opinions of Xxxxxx & Xxxxxxx LLP described in Exhibits A-1 and A-2 shall be rendered to the Underwriters at the request of the Company and shall so state therein. The opinions of Xxxxxx & Xxxxxxx LLP described in Exhibits A-1 and A-2 may also state that, insofar as such opinions involve factual matters, Xxxxxx & Xxxxxxx LLP has relied, to the extent they deem proper, upon certificates of officers of the Company.
(e) The Underwriters shall have received on the Closing Date or developments since the respective dates as of which specified financial information is given in the ProspectusOption Closing Date, as the case may be, an opinion of a date not more than three days prior Xxxxxxx Xxxxx LLP, special Maryland counsel to the date of the bring-down letter)Company, the conclusions and findings of such firm with respect to the financial information matters identified in Exhibit B hereto. The opinions of Xxxxxxx Xxxxx LLP described in Exhibit B shall be rendered to the Underwriters at the request of the Company and other matters covered by the initial letter, and (iii) confirming in all material respects the conclusions and findings set forth in the initial lettershall so state therein.
(gf) The Representatives Underwriters shall have received from Von Gonten a letter (on the “Initial Expert Letter”)Closing Date or the Option Closing Date, as the case may be, an opinion of Xxxxxxxx Chance US LLP, counsel for the Underwriters, dated as of the date hereof, in form and substance satisfactory to the Representatives, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offerings.
(h) The Representatives shall have received from Von Gonten a subsequent letter, dated as of the Closing Date or the Option Closing Date, as the case may be, in the form and substance reasonably satisfactory to the RepresentativesUnderwriters. In giving such opinion such counsel may rely, which as to all matters governed by Maryland law, upon the opinion of Xxxxxxx Xxxxx LLP referred to in Section 5(e) above. Such counsel may also state that, insofar as such letter opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company and certificates of public officials.
(g) The Underwriters shall cover the period from the Initial Expert Letter to have received on or about the Closing Date or the Option Closing Date, as the case may be, stating an opinion of the conclusions and findings General Counsel of such firm the Company, dated the Closing Date or the Option Closing Date, as the case may be, with respect to reserve the matters identified in Exhibit C hereto. The opinions of General Counsel of the Company described in Exhibit C shall be rendered to the Underwriters at the request of the Company and other operational shall so state therein.
(h) The Underwriters shall have received, on each of the date hereof, the Closing Date, and the Option Closing Date, a letter dated the respective dates of delivery thereof, in form and substance satisfactory to the Underwriters, from Deloitte & Touche LLP, an independent registered public accounting firm, containing statements and information and other matters as is customary of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in connection with registered public offeringsthe Registration Statement, the Time of Sale Prospectus and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than two days prior to the date hereof and the Closing Date, as applicable.
(i) The “lock-up” agreements, each substantially in the form of Exhibit A hereto, between the Representatives and those certain stockholders, officers and directors of the Company named in Schedule IV hereto relating to sales and certain other dispositions of shares of stock of the Company or certain other securities, delivered to the Representatives on or before the date hereof, shall be in full force and effect on At the Closing Date and the Option Closing Date.
(j) The Operative Agreements , the Shares shall have been executed and delivered by approved for listing on the Company Entities party thereto and shall be in full force and effect on such date.
(k) NYSE, subject only to official notice of issuance. The several obligations of the Underwriters to purchase Additional Shares hereunder are subject to the delivery to the Representatives 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 Xxxxxxxx & Xxxxx 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 & Xxxxxx L.L.P., 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(d) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Deloitte, 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 three business days prior to such Option Closing Date;
(v) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Von Gonten, independent reserves engineers, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(h) hereof; and
(vi) such other documents as the Representatives you may reasonably request with respect to the good standing of the Company Entitiesand the Subsidiaries, 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 Additional Shares.
Appears in 1 contract
Conditions to the Underwriters’ Obligations. The obligations of the Company 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 [●] [a.m./p.m.] 5:30 p.m. (New York City time) on the date hereofprior to the date of this agreement. 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 the Company Entities its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) 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 Entitiesand its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus that, in the Representatives’ your judgment, is material and adverse and that makes it, in the Representatives’ your judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Representatives Underwriters shall have received on the Closing Date a certificate, dated the Closing Date, addressed to the Underwriters Date and signed by an executive officer of the Company, to the effect set forth in Section 6(a6(a)(i) above and to the effect that the representations and warranties of the Company Parties contained in this Agreement are true and correct as of the Closing Date and that the Company Parties have 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 Representatives Underwriters shall have received a Certificate of the Chief Financial Officer, dated as of the date hereof and on the Closing Date, in his capacity as an officer of the Company and not in his individual capacity, in the form and substance reasonably satisfactory to you.
(d) The Underwriters shall have received on the Closing Date an opinion of Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, outside counsel for the Company, dated the Closing Date, including the opinions set forth in Annex I hereto.
(e) The Underwriters shall have received on the Closing Date an opinion of Xxxxxxxxxx Hyatt Xxxxxx Xxxxxxx LLP, Nevada counsel for the Company, dated the Closing Date, including the opinions set forth in Annex II hereto.
(f) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx LLP, counsel for the Selling Shareholders other than Parthenon DCS Holdings, LLC, dated the Closing Date, including the opinions set forth in Annex III hereto.
(g) The Underwriters shall have received on the Closing Date an opinion of Xxxxxxxx, Xxxxxxxx & Xxxxxx, P.A., counsel for Parthenon DCS Holdings, LLC, dated the Closing Date, including the opinions set forth in Annex IV hereto.
(h) The Underwriters shall have received on the Closing Date an opinion of Xxxxxxxx & Xxxxx LLP, outside counsel for the Company, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as Exhibit C.
(d) The Representatives shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxx L.L.P., counsel for the Underwriters, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives. With respect to Sections 6(c) and 6(d) above, Xxxxxxxx & Xxxxx LLP and Xxxxxx & Xxxxxx L.L.P. 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 Xxxxxxxx & Xxxxx LLP described in Section 6(c) above shall be rendered to the Underwriters at the request of the Company Parties and shall so state therein.
(e) The Representatives shall have received from Deloitte a “comfort letter” (the “initial comfort letter”) dated as of the date hereof and addressed to the UnderwritersDate, in form and substance satisfactory to the Representatives, Underwriters.
(i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the CommissionThe Underwriters shall have received, and (ii) stating, as on each of the date hereof (or, with respect to matters involving changes or developments since and the respective dates as of which specified financial information is given in the most recent Time of Sale Prospectus, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(f) The Representatives shall have received from Deloitte a “bring-down comfort letter” (the “bring-down comfort letter”) dated as of the Closing Date or the Option Closing Date, as the case may be, and addressed to the Underwriters, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the Closing Date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than three days prior to letter dated the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter, and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(g) The Representatives shall have received from Von Gonten a letter (the “Initial Expert Letter”), dated as of the date hereof, in form and substance satisfactory to the Representatives, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offerings.
(h) The Representatives shall have received from Von Gonten a subsequent letter, dated as of the Closing Date hereof or the Option Closing Date, as the case may be, in form and substance satisfactory to the RepresentativesUnderwriters, which such from 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 shall cover the period from the Initial Expert Letter to delivered on the Closing Date or shall use a “cut-off date” not earlier than the Option Closing Date, as the case may be, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offeringsdate hereof.
(ij) The “lock-up” agreements, each substantially in the form of Exhibit A hereto, between the Representatives you and those certain stockholdersshareholders, officers and directors of the Company named in Schedule IV hereto relating to sales and certain other dispositions of shares of stock of the Company Common Stock or certain other securities, delivered to the Representatives you on or before the date hereof, shall be in full force and effect on the Closing Date.
(j) The Operative Agreements shall have been executed and delivered by the Company Entities party thereto and shall be in full force and effect on such date.
(k) . The several obligations of the Underwriters to purchase Additional Shares hereunder are subject to the delivery to the Representatives 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 Xxxxxxxx & Xxxxx 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 & Xxxxxx L.L.P., 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(d) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Deloitte, 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 three business days prior to such Option Closing Date;
(v) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Von Gonten, independent reserves engineers, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(h) hereof; and
(vi) such other documents as the Representatives you may reasonably request with respect to the good standing of the Company EntitiesCompany, 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 Additional Shares.
Appears in 1 contract
Conditions to the Underwriters’ Obligations. The obligations 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 been declared effective by the Commission not later than [●] [a.m./p.m.] 2:00 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 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 of the Company or any of the Company Entities Subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) 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 Entitiesand its subsidiaries, taken as a whole, from that set forth in the respective dates of the Registration Statement, the Time of Sale Prospectus and the Prospectus that, in the Representatives’ your judgment, is material and adverse and that makes it, in the Representatives’ your judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Representatives Underwriters shall have received on the Closing Date a certificate, dated the Closing Date, addressed to the Underwriters Date and signed by an executive officer of the CompanyCompany and the General Partner of the Operating Partnership, to the effect set forth in Section 6(a5(a)(i) above and to the effect that the representations and warranties of the Company Parties and the Operating Partnership contained in this Agreement are true and correct as of the Closing Date and that each of the Company Parties have and the Operating Partnership 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 on behalf of the Company and the General Partner of the Operating Partnership may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Representatives shall have received on the Closing Date an opinion of Xxxxxxxx & Xxxxx LLP, outside counsel for the Company, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as Exhibit C.
(d) The Representatives Underwriters shall have received on the Closing Date an opinion of Xxxxxx Xxxxx Xxxxxxxx & Xxxxxx L.L.P.Xxxxxxx LLP, outside counsel for the UnderwritersCompany and the Operating Partnership, dated the Closing Date and addressed Date, with respect to the Underwritersmatters identified in Exhibits A-1 and A-2 hereto. In giving such opinions, such counsel may rely, as to matters of fact, to the extent it deems proper, on certificates of officers of the Company and the General Partner of the Operating Partnership and certificates of public officials.
(d) The Underwriters shall have received on the Closing Date an opinion of Xxxxxxx Xxxxx LLP, Maryland corporate counsel for the Company, dated the Closing Date, with respect to the matters identified in Exhibit B hereto.
(e) The Underwriters shall have received on the Closing Date an opinion of Sidley Austin LLP, in form and substance reasonably satisfactory to the RepresentativesUnderwriters. With respect In giving such opinion such counsel may rely, as to Sections 6(c) and 6(d) aboveall matters governed by Maryland law, Xxxxxxxx & upon the opinion of Xxxxxxx Xxxxx LLP and Xxxxxx & Xxxxxx L.L.P. 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 Xxxxxxxx & Xxxxx LLP described referred to in Section 6(c) above shall be rendered 5(d). In giving such opinions, such counsel may rely, as to matters of fact, to the Underwriters at the request extent it deems proper, on certificates of officers of the Company Parties and shall so state therein.
(e) The Representatives shall have received from Deloitte a “comfort letter” (the “initial comfort letter”) dated as General Partner of the date hereof Operating Partnership and addressed to the Underwriters, in form and substance satisfactory to the Representatives, (i) confirming that they are independent certificates of public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the most recent Time of Sale Prospectus, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offeringsofficials.
(f) The Representatives Underwriters shall have received from Deloitte a “bring-down comfort letter” (the “bring-down comfort letter”) dated as received, on each of the Closing Date or date hereof and the Option Closing Date, as the case may be, and addressed to the Underwriters, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the Closing Date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than three days prior to letter dated the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter, and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(g) The Representatives shall have received from Von Gonten a letter (the “Initial Expert Letter”), dated as of the date hereof, in form and substance satisfactory to the Representatives, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offerings.
(h) The Representatives shall have received from Von Gonten a subsequent letter, dated as of the Closing Date hereof or the Option Closing Date, as the case may be, in form and substance satisfactory to the RepresentativesUnderwriters, which such 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 financial statements and certain financial information of the Company contained in the Registration Statement, the Time of Sale Prospectus and the Prospectus; provided that the letter shall cover the period from the Initial Expert Letter to 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 letter dated the date hereof or the Option Closing Date, as the case may be, stating in form and substance satisfactory to the conclusions Underwriters, from Deloitte & Touche LLP, an independent registered public accounting firm, containing statements and findings information of such firm the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to reserve certain financial information of Caesars Entertainment Corporation contained in the Registration Statement, the Time of Sale Prospectus and other operational information and other matters as is customary to underwriters in connection with registered public offeringsthe Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
(ih) The “lock-up” agreements, each (i) substantially in the form of Exhibit C-1 hereto signed by the persons listed on Schedule IV-1 hereto and (ii) substantially in the form of Exhibit C-2-A or Exhibit C-2-B hereto signed by the persons listed on Schedule IV-2 hereto, between the Representatives and those certain stockholders, officers and directors of the Company named in Schedule IV hereto relating to sales and certain other dispositions of shares of stock of the Company Common Stock or certain other securities, delivered to the Representatives you on or before the date hereof, shall be in full force and effect on the Closing Date.
(i) FINRA has confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements relating to the offering of the Shares.
(j) The Operative Agreements On the Closing Date, the Shares shall have been executed and delivered by approved for listing on the Company Entities party thereto and shall be in full force and effect on such dateNYSE, subject only to official notice of issuance.
(k) The several obligations of the Underwriters to purchase Additional Shares hereunder are subject to the delivery to the Representatives 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 CompanyCompany and the General Partner of the Operating Partnership, confirming that the certificate delivered on the Closing Date pursuant to Section 6(b5(b) hereof remains true and correct as of such Option Closing Date;
(ii) an opinion of Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP, outside counsel for the Company and the Operating Partnership, 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 Xxxxx LLP, outside Maryland corporate 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(c5(d) hereof;
(iiiiv) an opinion of Xxxxxx & Xxxxxx L.L.P.Sidley Austin 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(d5(e) hereof;
(ivv) a letter dated the Option Closing Date, in form and substance satisfactory to the RepresentativesUnderwriters, from DeloitteDeloitte & Touche LLP, independent public accountants, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(f5(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;
(vvi) a letter dated the Option Closing Date, in form and substance satisfactory to the RepresentativesUnderwriters, from Von GontenDeloitte & Touche LLP, independent reserves engineerspublic accountants, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(h5(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
(vivii) such other documents as the Representatives you may reasonably request with respect to the good standing of the Company Entitiesand the Operating Partnership, 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 Additional Shares.
Appears in 1 contract
Conditions to the Underwriters’ Obligations. The obligations of the Company and, if applicable, 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 [●·] [a.m./p.m.] 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 any of the Company Entities by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Securities Exchange Act of 1934, as amended (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 Entities, taken as a whole, from that set forth in the Time of Sale Prospectus that, in the Representatives’ your judgment, is material and adverse and that makes it, in the Representatives’ your judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Representatives Underwriters shall have received on the Closing Date (i) a certificate, dated the Closing Date, addressed to the Underwriters Date and signed by an executive officer of the Company on behalf of the Company, to the effect set forth in Section 6(a6(a)(i) above and to the effect that the representations and warranties of the Company Parties contained in this Agreement are true and correct as of the Closing Date and that the Company Parties have 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 from each Selling Shareholder, dated the Closing Date and signed by an authorized officer of each Selling Shareholder on behalf of such Selling Shareholder, to the effect that the representations and warranties of each such Selling Shareholder contained in this Agreement are true and correct as of the Closing Date and that each such Selling Shareholder has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. 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 Representatives Underwriters shall have received on the Closing Date an opinion of Xxxxxxxx & Xxxxx Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP, outside counsel for the Company, dated the Closing Date, substantially in the form of Exhibit B hereto.
(d) The Underwriters shall have received on the Closing Date (i) an opinion of BRL Law Group LLC, U.S. counsel for SV Life Sciences Fund IV, L.P., SV Life Sciences Fund IV Strategic Partners, L.P. and International Biotechnology Trust plc, each a Selling Shareholder named in Schedule IV hereto, dated the Closing Date and addressed to substantially in the form of Exhibit C-1 hereto and (ii) an opinion of Xxxxxxxxx and May, U.K. counsel for International Biotechnology Trust plc, a Selling Shareholder named in Schedule IV hereto, dated the Closing Date and substantially in the form of Exhibit C-2 hereto.
(e) The Underwriters shall have received on the Closing Date an opinion of Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as Exhibit C..
(df) The Representatives Underwriters shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxx L.L.P.LLP, intellectual property counsel for the UnderwritersCompany, dated the Closing Date and addressed to the UnderwritersDate, in form and substance reasonably satisfactory to the Representatives. With respect to Sections 6(c) and 6(d) above, Xxxxxxxx & Xxxxx LLP and Xxxxxx & Xxxxxx L.L.P. may state that their opinions and beliefs are based upon their participation substantially in the preparation form 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 specifiedExhibit D hereto. The opinion of Xxxxxxxx & Xxxxx Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP described in Section 6(c) above, the opinions of BRL Law Group LLC and of Xxxxxxxxx and May described in Section 6(d) above, and the opinion of Xxxxxx LLP described in Section 6(f) above shall be rendered to the Underwriters at the request of the Company Parties and shall so state therein.
(eg) The Representatives Underwriters shall have received from Deloitte a “comfort letter” (the “initial comfort letter”) dated as received, on each of the date hereof and addressed to the UnderwritersClosing Date, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of a letter dated the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the most recent Time of Sale Prospectus, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(f) The Representatives shall have received from Deloitte a “bring-down comfort letter” (the “bring-down comfort letter”) dated as of the Closing Date or the Option Closing Date, as the case may be, and addressed to the Underwriters, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the Closing Date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter, and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(g) The Representatives shall have received from Von Gonten a letter (the “Initial Expert Letter”), dated as of the date hereof, in form and substance satisfactory to the Representatives, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offerings.
(h) The Representatives shall have received from Von Gonten a subsequent letter, dated as of the Closing Date or the Option Closing Date, as the case may be, in form and substance satisfactory to the RepresentativesUnderwriters, which such 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 contained in the Registration Statement, the Time of Sale Prospectus and the Prospectus; provided that the letter shall cover the period from the Initial Expert Letter to delivered on the Closing Date or shall use a “cut-off date” not earlier than the Option Closing Date, as the case may be, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offeringsdate hereof.
(ih) The “lock-up” agreements, each substantially in the form of Exhibit A hereto, between you, the Representatives Selling Shareholders, and those certain stockholders, officers and directors of the Company named in Schedule IV hereto relating to sales and certain other dispositions of shares of stock of the Company Common Stock or certain other securities, delivered to the Representatives you on or before the date hereof, shall be in full force and effect on the Closing Date.
(j) The Operative Agreements shall have been executed and delivered by the Company Entities party thereto and shall be in full force and effect on such date.
(k) . The several obligations of the Underwriters to purchase Additional Shares hereunder are subject to the delivery to the Representatives 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 Xxxxxxxx & Xxxxx 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 & Xxxxxx L.L.P., 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(d) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Deloitte, 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 three business days prior to such Option Closing Date;
(v) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Von Gonten, independent reserves engineers, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(h) hereof; and
(vi) such other documents as the Representatives you may reasonably request with respect to the good standing of the Company EntitiesCompany, the due authorization and issuance of the Additional Shares to be sold on such Option Closing Date and other matters related to the issuance or sale of such Additional Shares.
Appears in 1 contract
Conditions to the Underwriters’ Obligations. The obligations of the Company to sell the Shares to the Underwriters and the several obligations of the Underwriters to purchase and pay for the Shares on the Closing Date are subject to the condition that the Registration Statement shall have become effective not later than [●] [a.m./p.m.] 5:00 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) 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 the Company Entities its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of 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 business, management or operations of the Company Entitiesand its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus that, in the Representatives’ your judgment, is material and adverse and that makes it, in the Representatives’ your judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Representatives Underwriters shall have received on the Closing Date a certificate, dated the Closing Date, addressed to the Underwriters Date and signed on behalf of the Company by an executive officer of the Company, to the effect set forth in Section 6(a) above and to the effect that the representations and warranties of the Company Parties contained in this Agreement are true and correct as of the Closing Date and that the Company Parties have 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 Representatives Underwriters shall have received on the Closing Date an opinion and negative assurance letter of Xxxxxxxx & Xxxxx LLPXxxxxx LLP (“Cooley”), outside counsel for the Company, dated the Closing Date and addressed to the UnderwritersDate, in form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as Exhibit C..
(d) The Representatives Underwriters shall have received on the Closing Date an opinion of Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx L.L.P.Xxxxxx, Professional Corporation (“WSGR”), counsel for the Underwriters, dated the Closing Date and addressed to the UnderwritersDate, in form and substance reasonably satisfactory to the Representatives. With respect to Sections 6(cSection 5(c) and 6(d) above5(d), Xxxxxxxx & Xxxxx LLP Cooley and Xxxxxx & Xxxxxx L.L.P. WSGR, 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 Xxxxxxxx & Xxxxx LLP Cooley described in Section 6(c5(c) above shall be rendered to the Underwriters at the request of the Company Parties Company, and shall so state therein.
(e) The Representatives shall have received from Deloitte a “comfort letter” (the “initial comfort letter”) dated as received, on each of the date hereof and addressed to the UnderwritersClosing Date, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of a letter dated the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the most recent Time of Sale Prospectus, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(f) The Representatives shall have received from Deloitte a “bring-down comfort letter” (the “bring-down comfort letter”) dated as of the Closing Date or the Option Closing Date, as the case may be, and addressed to the Underwriters, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the Closing Date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter, and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(g) The Representatives shall have received from Von Gonten a letter (the “Initial Expert Letter”), dated as of the date hereof, in form and substance satisfactory to the Representatives, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offerings.
(h) The Representatives shall have received from Von Gonten a subsequent letter, dated as of the Closing Date or the Option Closing Date, as the case may be, in form and substance satisfactory to the Representatives, which such from PwC 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 shall cover the period from the Initial Expert Letter to delivered on the Closing Date or shall use a “cut-off date” not earlier than the Option date hereof.
(f) The Underwriters shall have received, on each of the date hereof and the Closing Date, as a certificate, in form and substance satisfactory to the case may beRepresentatives, stating signed by the conclusions and findings Chief Financial Officer of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offeringsthe Company.
(ig) The “lock-up” agreements, each substantially in the form of Exhibit A hereto, between the Representatives you and those certain stockholdersshareholders, officers and directors of the Company named in Schedule IV hereto relating to sales and certain other dispositions of shares of stock of the Company Common Stock or certain other securities, delivered to the Representatives you on or before the date hereof, shall be in full force and effect on the Closing Date.
(jh) The Operative Agreements On or prior to the Closing Date, the Company shall have been executed and delivered by the Company Entities party thereto and shall be in full force and effect on such date.
(k) The several obligations of the Underwriters to purchase Additional Shares hereunder are subject to the delivery furnished to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate, dated the Option Closing Date such further certificates 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 Xxxxxxxx & Xxxxx 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 & Xxxxxx L.L.P., 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(d) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Deloitte, 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 three business days prior to such Option Closing Date;
(v) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Von Gonten, independent reserves engineers, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(h) hereof; and
(vi) such other documents as the Representatives may reasonably request with respect to the good standing of the Company Entities, 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 Additional Sharesrequest.
Appears in 1 contract
Conditions to the Underwriters’ Obligations. The obligations of the Company to sell the Shares to the Underwriters and the several obligations of the Underwriters to purchase and pay for the Shares on the Closing Date are subject to the condition that the Registration Statement shall have become effective not later than [●] [a.m./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) 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 the Company Entities its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of 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 Entitiesand its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus that, in the Representatives’ judgment, is material and adverse and that makes it, in the Representatives’ judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Representatives Underwriters shall have received on the Closing Date a certificate, dated the Closing Date, addressed to the Underwriters Date and signed by an executive officer of the Company, to the effect set forth in Section 6(aSections 5(a)(i), 5(a)(ii) and 5(a)(iii) above and to the effect that the representations and warranties of the Company Parties contained in this Agreement are true and correct as of the Closing Date and that the Company Parties have 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 Representatives Underwriters shall have received on the Closing Date an opinion and negative assurance letter of Xxxxxxxx & Xxxxx LLP, outside counsel for the Company, dated the Closing Date and addressed to the UnderwritersDate, in form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as Exhibit C.Underwriters.
(d) The Representatives Underwriters shall have received on the Closing Date an opinion and negative assurance letter of Xxxxxx Xxxxx Xxxx & Xxxxxx L.L.P.Xxxxxxxx LLP, counsel for the Underwriters, dated the Closing Date and addressed to the UnderwritersDate, in form and substance reasonably satisfactory to the RepresentativesUnderwriters. With respect to the negative assurance letters to be delivered pursuant to Sections 6(c5(c) and 6(d5(d) above, Xxxxxxxx & Xxxxx LLP and Xxxxxx Xxxxx Xxxx & Xxxxxx L.L.P. Xxxxxxxx LLP may state that their opinions and beliefs are based upon their participation in the preparation of the Registration Statement, the Time of Sale Prospectus and the Prospectus and any amendments or supplements thereto and review and discussion of the contents thereof, but are without independent check or verification, except as specified. The opinion opinions of Xxxxxxxx & Xxxxx LLP described in Section 6(c) above shall be rendered to the Underwriters at the request of the Company Parties and shall so state therein.
(e) The Representatives Underwriters shall have received from Deloitte a “comfort letter” (the “initial comfort letter”) dated as received, on each of the date hereof and addressed to the UnderwritersClosing Date, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of a letter dated the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the most recent Time of Sale Prospectus, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(f) The Representatives shall have received from Deloitte a “bring-down comfort letter” (the “bring-down comfort letter”) dated as of the Closing Date or the Option Closing Date, as the case may be, and addressed to the Underwriters, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the Closing Date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter, and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(g) The Representatives shall have received from Von Gonten a letter (the “Initial Expert Letter”), dated as of the date hereof, in form and substance satisfactory to the Representatives, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offerings.
(h) The Representatives shall have received from Von Gonten a subsequent letter, dated as of the Closing Date or the Option Closing Date, as the case may be, in form and substance satisfactory to the RepresentativesUnderwriters, which such 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 shall cover the period from the Initial Expert Letter to delivered on the Closing Date or shall use a “cut-off date” not earlier than the Option Closing Date, as the case may be, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offeringsdate hereof.
(if) The “lock-up” agreements, each substantially in the form of Exhibit A hereto, between the Representatives and those certain stockholders, officers and directors of the Company named in Schedule IV hereto relating to restrictions on sales and certain other dispositions of shares of stock of the Company Common Stock or certain other securities, delivered to the Representatives on or before the date hereofhereof (the “Lock-up Agreements”), shall be in full force and effect on the Closing Date.
(jg) The Operative Agreements chief financial officer of the Company, in her capacity as such, shall have delivered to the Underwriters, on each of the date hereof and the Closing Date, a certificate with respect to certain financial and accounting information in the Registration Statement, the Time of Sale Prospectus and the Prospectus, in form and substance reasonably acceptable to the Representatives.
(h) The Underwriters shall have received on and as of the Closing Date satisfactory evidence of the good standing of the Company in its jurisdiction of organization and its good standing in such other jurisdictions as the Underwriters may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(i) The Shares to be delivered on the Closing Date shall have been executed and delivered by approved for listing on the Company Entities party thereto and shall be in full force and effect on such dateNasdaq Global Select Market, subject to official notice of issuance.
(kj) The several obligations of the Underwriters to purchase Additional Shares hereunder are subject to the delivery to 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(b5(b) hereof remains true and correct as of such Option Closing Date;
(ii) an opinion and negative assurance letter of Xxxxxxxx & Xxxxx 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(c5(c) hereof;
(iii) an opinion and negative assurance letter of Xxxxxx Xxxxx Xxxx & Xxxxxx L.L.P.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 6(d5(d) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the RepresentativesUnderwriters, from DeloitteDeloitte & Touche LLP, independent public accountants, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(f5(e) hereof; provided that the letter delivered on the Option Closing Date shall use a “cut-off date” not earlier than three two business days prior to such Option Closing Date;
(v) a letter certificate, dated the Option Closing Date, in form Date and substance satisfactory to signed by the Representatives, from Von Gonten, independent reserves engineers, chief financial officer of the Company substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(h5(g) hereof;
(vi) satisfactory evidence of the good standing as of the Option Closing Date of the Company substantially in the same form and substance as the evidence furnished to the Underwriters pursuant to Section 5(h) hereof;
(vii) approval for listing on the Nasdaq Global Select Market of the Additional Shares to be delivered on the Option Closing Date substantially in the same form and substance as the approval furnished to the Underwriters pursuant to Section 5(i) hereof; and
(viviii) such other documents as the Representatives may reasonably request with respect to the good standing of the Company EntitiesCompany, 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 Additional Shares.
Appears in 1 contract
Conditions to the Underwriters’ Obligations. The obligations of the Company to sell the Shares to the Underwriters and the several obligations of the Underwriters to purchase and pay for the Shares on the Closing Date are subject to the condition that the Registration Statement shall have become effective not later than [●] [a.m./p.m.] 4:30 PM (New York City time) on the date hereof. The several obligations of the Underwriters are subject to the following further conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company's securities of any of the Company Entities by any “"nationally recognized statistical rating organization,” " as such term is defined in Section 3(a)(62for purposes of Rule 436(g)(2) of 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 Entitiesand its subsidiaries, taken as a whole, from that set forth in the Time Prospectus (exclusive of Sale Prospectus any amendments or supplements thereto subsequent to the date of this Agreement) that, in the Representatives’ your judgment, is material and adverse and that makes it, in the Representatives’ your judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Representatives Underwriters shall have received on the Closing Date a certificate, dated the Closing Date, addressed to the Underwriters Date and signed by an executive officer of the Company, to the effect set forth in Section 6(a5(a)(i) above and to the effect that the representations and warranties of the Company Parties contained in this Agreement are true and correct as of the Closing Date and that the Company Parties have 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 Representatives shall have received on the Closing Date an opinion of Xxxxxxxx & Xxxxx LLP, outside counsel for the Company, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as Exhibit C.
(d) The Representatives shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxx L.L.P., counsel for the Underwriters, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives. With respect to Sections 6(c) and 6(d) above, Xxxxxxxx & Xxxxx LLP and Xxxxxx & Xxxxxx L.L.P. 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 Xxxxxxxx & Xxxxx LLP described in Section 6(c) above shall be rendered to the Underwriters at the request of the Company Parties and shall so state therein.
(e) The Representatives shall have received from Deloitte a “comfort letter” (the “initial comfort letter”) dated as of the date hereof and addressed to the Underwriters, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the most recent Time of Sale Prospectus, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(f) The Representatives shall have received from Deloitte a “bring-down comfort letter” (the “bring-down comfort letter”) dated as of the Closing Date or the Option Closing Date, as the case may be, and addressed to the Underwriters, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the Closing Date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter, and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(g) The Representatives shall have received from Von Gonten a letter (the “Initial Expert Letter”), dated as of the date hereof, in form and substance satisfactory to the Representatives, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offerings.
(h) The Representatives shall have received from Von Gonten a subsequent letter, dated as of the Closing Date or the Option Closing Date, as the case may be, in form and substance satisfactory to the Representatives, which such letter shall cover the period from the Initial Expert Letter to the Closing Date or the Option Closing Date, as the case may be, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offerings.
(i) The “lock-up” agreements, each substantially in the form of Exhibit A hereto, between the Representatives and those certain stockholders, officers and directors of the Company named in Schedule IV hereto relating to sales and certain other dispositions of shares of stock of the Company or certain other securities, delivered to the Representatives on or before the date hereof, shall be in full force and effect on the Closing Date.
(j) The Operative Agreements shall have been executed and delivered by the Company Entities party thereto and shall be in full force and effect on such date.
(k) The several obligations of the Underwriters to purchase Additional Shares hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate, dated the Option Closing Date and signed by an executive officer of the Company, confirming that the certificate delivered on the Closing Date pursuant to Section 6(b) hereof remains true and correct as of such Option Closing Date;
(ii) an opinion of Xxxxxxxx & Xxxxx 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 & Xxxxxx L.L.P., 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(d) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Deloitte, 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 three business days prior to such Option Closing Date;
(v) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Von Gonten, independent reserves engineers, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(h) hereof; and
(vi) such other documents as the Representatives may reasonably request with respect to the good standing of the Company Entities, 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 Additional Shares.
Appears in 1 contract
Conditions to the Underwriters’ Obligations. The obligations of the Company to sell the Shares to the Underwriters and the several obligations of the Underwriters to purchase and pay for the Shares on the Closing Date are subject to the condition that the Registration Statement shall have become effective not later than [●•] [a.m./p.ma./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 and no proceeding for such purpose or pursuant to Section 8A under the rating accorded any of Securities Act shall be pending before or, to the securities of any of Company’s knowledge, threatened by the Company Entities by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of 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 Entitiesand its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus that, in the Representatives’ judgment, is material and adverse and that makes it, in the Representatives’ judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Representatives Underwriters shall have received on the Closing Date a certificate, dated the Closing Date, addressed to the Underwriters Date and signed on behalf of the Company by an executive officer of the Company, to the effect set forth in Section 6(a5(a)(i) above and to the effect that the representations and warranties of the Company Parties contained in this Agreement are true and correct as of the Closing Date and that the Company Parties have 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 Representatives Underwriters shall have received on the Closing Date an opinion and negative assurance letter of Xxxxxx & Xxxxxxx LLP (“Xxxxxx & Xxxxxxx”), U.S. outside counsel for the Company, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives.
(d) The Underwriters shall have received on the Closing Date an opinion and negative assurance letter of Meitar Law Offices (“Meitar”), Israeli outside counsel for the Company, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives.
(e) The Underwriters shall have received on the Closing Date an opinion and negative assurance letter of Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx (“WSGR”), U.S. outside counsel for the Underwriters, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives.
(f) The Underwriters shall have received on the Closing Date an opinion of Xxxxxxxx Gornitzky & Xxxxx LLPCo. (“Gornitzky”), Israeli outside counsel for the Company, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as Exhibit C.
(d) The Representatives shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxx L.L.P., counsel for the Underwriters, dated the Closing Date and addressed to the UnderwritersDate, in form and substance reasonably satisfactory to the Representatives. With respect to the negative assurance letters to be delivered pursuant to Sections 6(c5(c), 5(d) and 6(d5(e) above, Xxxxxxxx & Xxxxx LLP and Xxxxxx & Xxxxxx L.L.P. Xxxxxxx, Meitar and WSGR 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 opinions of Xxxxxxxx Xxxxxx & Xxxxx LLP Xxxxxxx, Meitar, WSGR and Gornitzky described in Section 6(cSections 5(c), 5(d), 5(e), and 5(f) above shall be rendered to the Underwriters at the request of the Company Parties and shall so state therein.
(eg) The Representatives Underwriters shall have received from Deloitte a “comfort letter” (the “initial comfort letter”) dated as received, on each of the date hereof and addressed to the UnderwritersClosing Date, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of a letter dated the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the most recent Time of Sale Prospectus, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(f) The Representatives shall have received from Deloitte a “bring-down comfort letter” (the “bring-down comfort letter”) dated as of the Closing Date or the Option Closing Date, as the case may be, and addressed to the Underwriters, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the Closing Date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter, and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(g) The Representatives shall have received from Von Gonten a letter (the “Initial Expert Letter”), dated as of the date hereof, in form and substance satisfactory to the Representatives, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offerings.
(h) The Representatives shall have received from Von Gonten a subsequent letter, dated as of the Closing Date or the Option Closing Date, as the case may be, in form and substance satisfactory to the RepresentativesUnderwriters, which such from Xxxx Xxxxx Xxxxxx & Kasierer, a member firm of Ernst & Young Global, 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 shall cover the period from the Initial Expert Letter to delivered on the Closing Date or shall use a “cut-off date” not earlier than the Option date hereof.
(h) The Underwriters shall have received on the Closing DateDate a Chief Financial Officer’s certificate, as dated the case may beClosing Date and signed on behalf of the Company by the Chief Financial Officer of the Company, stating in form and substance reasonably satisfactory to the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offeringsRepresentatives.
(i) The “lockLock-up” agreements, each substantially in the form of Exhibit A hereto, up Agreements between the Representatives (on behalf of the Underwriters) and those certain stockholdersshareholders, officers and directors of the Company named in Schedule IV hereto relating to sales and certain other dispositions of shares of stock of the Company or certain other securities, delivered to the Representatives on or before the date hereof, shall be in full force and effect on the Closing Date.
(j) The Operative Agreements Firm Shares and Additional Shares, if any, shall have been executed and delivered by approved for listing on the Company Entities party thereto and shall be in full force and effect on such dateNasdaq Global Select Market (the “Nasdaq”), subject to official notice of issuance.
(k) The several obligations of the Underwriters to purchase Additional Shares hereunder are subject to the following as of the applicable Option 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, to the knowledge of the Company, threatened by the Commission;
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus that, in the Representatives’ judgment, is material and adverse and that makes it, in the Representatives’ judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus; and
(iii) The delivery to the Representatives on the applicable Option Closing Date of the following:
(iA) a certificate, dated the Option Closing Date and signed on behalf of the Company by an executive officer of the Company, confirming that the certificate delivered on the Closing Date pursuant to Section 6(b5(b) hereof remains true and correct as of such Option Closing Date;
(iiB) an opinion and negative assurance letter of Xxxxxxxx Xxxxxx & Xxxxx LLPXxxxxxx, U.S. 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(c5(c) hereof;
(iiiC) an opinion and negative assurance letter of Xxxxxx & Xxxxxx L.L.P.Meitar, Israeli outside counsel for the Company, dated the Option Closing Date, relating to the Additional Shares to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 5(d) hereof;
(D) an opinion and negative assurance letter of WSGR, U.S. outside 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(d5(f) hereof;
(ivE) an opinion of Gornitzky, Israeli outside 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(g) hereof;
(F) a letter dated the Option Closing Date, in form and substance satisfactory to the RepresentativesUnderwriters, from DeloitteXxxx Xxxxx Xxxxxx & Kasierer, a member firm of Ernst & Young Global, independent public accountants, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(f5(h) hereof; provided that the letter delivered on the Option Closing Date shall use a “cut-off date” not earlier than three two business days prior to such Option Closing Date;
(vG) a letter Chief Financial Officer’s certificate, dated the Option Closing DateDate and signed on behalf of the Company by the Chief Financial Officer of the Company, in form and substance satisfactory to the Representatives, from Von Gonten, independent reserves engineers, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to certificate required by Section 6(h) hereof5(i); and
(viH) such other documents as the Representatives may reasonably request with respect to the good standing of the Company EntitiesCompany, 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 Additional Shares.
Appears in 1 contract
Samples: Underwriting Agreement (WalkMe Ltd.)
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 [●] [a.m./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 Company's securities of any of the Company Entities by any “"nationally recognized statistical rating organization,” " as such term is defined in Section 3(a)(62for purposes of Rule 436(g)(2) of 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 Entitiesand its subsidiaries, taken as a whole, from that set forth in the Time Prospectus (exclusive of Sale Prospectus any amendments or supplements thereto subsequent to the date of this Agreement) that, in the Representatives’ your judgment, is material and adverse and that makes it, in the Representatives’ your judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Representatives Underwriters shall have received on the Closing Date a certificate, dated the Closing Date, addressed to the Underwriters Date and signed by an executive officer of the Company, to the effect set forth in Section 6(a5(a)(i) above and to the effect that the representations and warranties of the Company Parties contained in this Agreement are true and correct as of the Closing Date and that the Company Parties have 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 Representatives shall have received on the Closing Date an opinion of Xxxxxxxx & Xxxxx LLP, outside counsel for the Company, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as Exhibit C.
(d) The Representatives shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxx L.L.P., counsel for the Underwriters, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives. With respect to Sections 6(c) and 6(d) above, Xxxxxxxx & Xxxxx LLP and Xxxxxx & Xxxxxx L.L.P. 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 Xxxxxxxx & Xxxxx LLP described in Section 6(c) above shall be rendered to the Underwriters at the request of the Company Parties and shall so state therein.
(e) The Representatives shall have received from Deloitte a “comfort letter” (the “initial comfort letter”) dated as of the date hereof and addressed to the Underwriters, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the most recent Time of Sale Prospectus, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(f) The Representatives shall have received from Deloitte a “bring-down comfort letter” (the “bring-down comfort letter”) dated as of the Closing Date or the Option Closing Date, as the case may be, and addressed to the Underwriters, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the Closing Date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter, and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(g) The Representatives shall have received from Von Gonten a letter (the “Initial Expert Letter”), dated as of the date hereof, in form and substance satisfactory to the Representatives, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offerings.
(h) The Representatives shall have received from Von Gonten a subsequent letter, dated as of the Closing Date or the Option Closing Date, as the case may be, in form and substance satisfactory to the Representatives, which such letter shall cover the period from the Initial Expert Letter to the Closing Date or the Option Closing Date, as the case may be, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offerings.
(i) The “lock-up” agreements, each substantially in the form of Exhibit A hereto, between the Representatives and those certain stockholders, officers and directors of the Company named in Schedule IV hereto relating to sales and certain other dispositions of shares of stock of the Company or certain other securities, delivered to the Representatives on or before the date hereof, shall be in full force and effect on the Closing Date.
(j) The Operative Agreements shall have been executed and delivered by the Company Entities party thereto and shall be in full force and effect on such date.
(k) The several obligations of the Underwriters to purchase Additional Shares hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate, dated the Option Closing Date and signed by an executive officer of the Company, confirming that the certificate delivered on the Closing Date pursuant to Section 6(b) hereof remains true and correct as of such Option Closing Date;
(ii) an opinion of Xxxxxxxx & Xxxxx 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 & Xxxxxx L.L.P., 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(d) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Deloitte, 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 three business days prior to such Option Closing Date;
(v) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Von Gonten, independent reserves engineers, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(h) hereof; and
(vi) such other documents as the Representatives may reasonably request with respect to the good standing of the Company Entities, 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 Additional Shares.
Appears in 1 contract
Conditions to the Underwriters’ Obligations. The obligations of the Company to sell the Shares to the Underwriters and the several obligations of the Underwriters to purchase and pay for the Shares on the Closing Date are subject to the condition that the Registration Statement shall have become effective not later than [●] [a.m./p.m.] 5:00 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) 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 the Company Entities its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of 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 Entitiesand its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus that, in the judgment of the Representatives’ judgment, is material and adverse and that makes it, in the judgment of the Representatives’ judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Representatives Underwriters shall have received on the Closing Date a certificate, dated the Closing Date, addressed to the Underwriters Date and signed by an executive officer of the Company, to the effect set forth in Section 6(aSections 5(a)(i) and 5(a)(ii) above and to the effect that the representations and warranties of the Company Parties contained in this Agreement are true and correct as of the Closing Date and that the Company Parties have 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 Representatives Underwriters shall have received on the Closing Date an opinion and negative assurance letter of Xxxxxxxx & Xxxxx LLPDLA Piper LLP (US), outside counsel for the Company, dated the Closing Date and addressed to the UnderwritersDate, in form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as Exhibit C..
(d) The Representatives Underwriters shall have received on the Closing Date an opinion and negative assurance letter of Xxxxxx & Xxxxxx L.L.P.LLP, counsel for the Underwriters, dated the Closing Date and addressed to the UnderwritersDate, in form and substance reasonably satisfactory to the Representatives. With respect to Sections 6(c) and 6(dthe negative assurance letters to be delivered pursuant to Section 5(c) above, Xxxxxxxx & Xxxxx DLA Piper LLP (US) 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 5(d) above, Xxxxxx & Xxxxxx L.L.P. LLP may state that their opinions and beliefs are based upon their participation in the preparation of the Registration Statement, the Time of Sale Prospectus and the Prospectus and any amendments or supplements thereto (other than the documents incorporated by reference) and upon review and discussion of the contents thereofthereof (including documents incorporated by reference), but are without independent check or verification, except as specified. The opinion of Xxxxxxxx & Xxxxx DLA Piper LLP (US) described in Section 6(c5(c) above shall be rendered to the Underwriters at the request of the Company Parties and shall so state therein.
(e) The Representatives Underwriters shall have received from Deloitte a “comfort letter” (the “initial comfort letter”) dated as received, on each of the date hereof and addressed to the UnderwritersClosing Date, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of a letter dated the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the most recent Time of Sale Prospectus, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(f) The Representatives shall have received from Deloitte a “bring-down comfort letter” (the “bring-down comfort letter”) dated as of the Closing Date or the Option Closing Date, as the case may be, and addressed to the Underwriters, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the Closing Date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter, and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(g) The Representatives shall have received from Von Gonten a letter (the “Initial Expert Letter”), dated as of the date hereof, in form and substance satisfactory to the Representatives, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offerings.
(h) The Representatives shall have received from Von Gonten a subsequent letter, dated as of the Closing Date or the Option Closing Date, as the case may be, in form and substance satisfactory to the RepresentativesUnderwriters, which such 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 of the Company contained in the Registration Statement, the Time of Sale Prospectus and the Prospectus; provided that the letter shall cover the period from the Initial Expert Letter to delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
(f) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Option Closing Date, as the case may be, stating in form and substance satisfactory to the conclusions Underwriters, from CohnReznick LLP, independent public accountants, containing statements and findings information of such firm the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to reserve the financial statements and other operational certain financial information of GeneSiC contained in the Registration Statement, the Time of Sale Prospectus and other matters as is customary to underwriters in connection with registered public offeringsthe Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
(ig) The “lock-up” agreements, each substantially in the form of Exhibit A hereto, between executed by the Representatives and those certain stockholders, executive officers and directors and certain stockholders of the Company named in Schedule IV hereto relating to restrictions on sales and certain other dispositions of shares of stock of the Company Common Stock or certain other securities, delivered to the Representatives on or before the date hereof, shall be in full force and effect on the Closing Date.
(jh) The Operative Agreements chief financial officer of the Company shall have been executed delivered to the Underwriters, on each of the date hereof and delivered by on the Company Entities party thereto Closing Date, a certificate in form and shall be in full force and effect on such datesubstance reasonably acceptable to the Representatives.
(ki) The several obligations of the Underwriters to purchase Additional Shares hereunder are subject to the delivery to 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(b5(b) hereof remains true and correct as of such Option Closing Date;
(ii) an opinion and negative assurance letter of Xxxxxxxx & Xxxxx LLPDLA Piper LLP (US), 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(c5(c) hereof;
(iii) an opinion and negative assurance letter of Xxxxxx & Xxxxxx L.L.P.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(d5(d) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the RepresentativesUnderwriters, from DeloitteDeloitte & Touche LLP, independent public accountants, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(f5(e) hereof; provided that the letter delivered on the Option Closing Date shall use a “cut-off date” not earlier than three two business days prior to such Option Closing Date;
(v) a letter dated the Option Closing Date, in form and substance satisfactory to the RepresentativesUnderwriters, from Von GontenCohnReznick LLP, independent reserves engineerspublic accountants, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(h5(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 and signed by the chief financial officer of the Company, substantially in the same form and substance as the certificate furnished to the Underwriters pursuant to Section 5(h) hereof; and
(vivii) such other documents as the Representatives may reasonably request with respect to the good standing of the Company EntitiesCompany, 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 Additional Shares.
Appears in 1 contract
Samples: Underwriting Agreement (Navitas Semiconductor Corp)
Conditions to the Underwriters’ Obligations. The obligations of the Company Selling Stockholders 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 [●] [a.m./p.m.] 5:00 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 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 of any indebtedness of the Company Entities or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined in for purposes of Section 3(a)(62) 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 Entitiesand 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 the Representatives’ your judgment, is material and adverse and that makes it, in the Representatives’ your judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Representatives Underwriters shall have received on the Closing Date a certificate, dated the Closing Date, addressed to the Underwriters Date and signed by an executive officer of the Company, to the effect set forth in Section 6(a6(a)(i) above and to the effect that the representations and warranties of the Company Parties contained in this Agreement are true and correct as of the Closing Date and that the Company Parties have 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 Representatives Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by one or more attorneys in fact on behalf of each of the Selling Stockholders, to the effect that the representations and warranties of such Selling Stockholder are true and correct as of the Closing Date and that such Selling Stockholder has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date.
(d) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by one or more attorneys in fact on behalf of each of the Selling Stockholders, stating that such Selling Stockholder has carefully examined the Registration Statement, the Time of Sale Prospectus and the Prospectus, and, to its knowledge, (A) (i) the Registration Statement, as of the date it became effective, (ii) the Time of Sale Prospectus, as of the Time of Sale, and (iii) the Prospectus, as of its date and on the Closing Date, did not and do not contain any untrue statement of a material fact or omit to state a material fact 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 date the Registration Statement became effective, 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. The certificate may be limited to statements or omissions made in reliance upon information relating to such Selling Stockholder furnished to the Company in writing by such Selling Stockholder expressly for use in the Registration Statement, the Time of Sale Prospectus, the Prospectus or any amendments or supplements thereto.
(e) The Underwriters shall have received on the Closing Date an opinion and negative assurance letter of Xxxxxxxx Xxxxxx & Xxxxx Xxxxxxx LLP, outside counsel for the Company, dated the Closing Date and addressed to the UnderwritersDate, in form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as Exhibit C.Underwriters.
(df) The Representatives Underwriters shall have received on the Closing Date an opinion of Xxxxxx the General Counsel of the Company, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriters.
(g) The Underwriters shall have received on the Closing Date an opinion of counsel for each of the Selling Stockholders, dated the Closing Date in form and substance reasonably satisfactory to the Underwriters.
(h) The Underwriters shall have received on the Closing Date an opinion of Xxxxx Xxxx & Xxxxxx L.L.P.Xxxxxxxx LLP, counsel for the Underwriters, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives. With with respect to Sections 6(c) and 6(d) above, Xxxxxxxx & Xxxxx LLP and Xxxxxx & Xxxxxx L.L.P. 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 such matters as specified. The opinion of Xxxxxxxx & Xxxxx LLP described in Section 6(c) above shall be rendered to the Underwriters at the request of the Company Parties and shall so state thereinmay reasonably request.
(ei) The Representatives Underwriters shall have received from Deloitte a “comfort letter” (the “initial comfort letter”) dated as received, on each of the date hereof and addressed to the UnderwritersClosing Date, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of a letter dated the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the most recent Time of Sale Prospectus, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(f) The Representatives shall have received from Deloitte a “bring-down comfort letter” (the “bring-down comfort letter”) dated as of the Closing Date or the Option Closing Date, as the case may be, and addressed to the Underwriters, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the Closing Date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter, and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(g) The Representatives shall have received from Von Gonten a letter (the “Initial Expert Letter”), dated as of the date hereof, in form and substance satisfactory to the Representatives, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offerings.
(h) The Representatives shall have received from Von Gonten a subsequent letter, dated as of the Closing Date or the Option Closing Date, as the case may be, in form and substance satisfactory to the RepresentativesUnderwriters, which such from 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 shall cover the period from the Initial Expert Letter to delivered on the Closing Date or shall use a “cut-off date” not earlier than the Option Closing Date, as the case may be, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offeringsdate hereof.
(ij) The “lock-up” agreements, each substantially in the form of Exhibit A hereto, between the Representatives you and those certain all stockholders, officers and directors of the Company named in Schedule IV hereto listed on Exhibit B relating to sales and certain other dispositions of shares of stock of the Company Common Stock or certain other securities, delivered to the Representatives you on or before the date hereof, shall be in full force and effect on the Closing Date.
(j) The Operative Agreements shall have been executed and delivered by the Company Entities party thereto and shall be in full force and effect on such date.
(k) The several obligations of the Underwriters Shares to purchase Additional Shares hereunder are subject to the delivery to 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 be delivered on the Closing Date shall have been approved for listing on the New York Stock Exchange, subject to official notice of issuance.
(l) No order suspending the effectiveness of the Registration Statement shall be in effect, and no proceeding for such purpose pursuant to Section 6(b8A 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 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) hereof remains and in accordance with Section 7(c) hereof; and all requests by the Commission for additional information shall have been complied with to the reasonable satisfaction of Barclays Capital Inc.
(m) The representations and warranties of the Company contained in this Agreement are true and correct as of such Option Closing Date;
(ii) an opinion of Xxxxxxxx & Xxxxx 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 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 same effect as the opinion required by Section 6(c) hereof;
(iii) an opinion of Xxxxxx & Xxxxxx L.L.P., 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(d) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Deloitte, 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 three business days prior to such Option Closing Date;
(v) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Von Gonten, independent reserves engineers, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(h) hereof; and
(vi) such other documents as the Representatives may reasonably request with respect to the good standing of the Company Entities, 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 Additional Shares.
Appears in 1 contract
Samples: Underwriting Agreement (Wesco Aircraft 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 [●] ·][a.m./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 the Company Entities its Subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) 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 Entitiesor any of its Subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus that, in the Representatives’ your judgment, is material and adverse and that makes it, in the Representatives’ your judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Representatives Underwriters shall have received on the Closing Date a certificate, dated the Closing Date, addressed to the Underwriters Date and signed by an executive officer of the Company, to the effect set forth in Section 6(a5(a)(i) above and to the effect that the representations and warranties of the Company Parties contained in this Agreement are true and correct as of the Closing Date and that the Company Parties have 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 Representatives Underwriters shall have received on the Closing Date an opinion and negative assurance letter of Xxxxxxxx & Xxxxx Proskauer Rose LLP, outside counsel for the Company, dated the Closing Date and addressed to the UnderwritersDate, in form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as Exhibit C.Underwriters.
(d) The Representatives Underwriters shall have received on the Closing Date an opinion of Xxxxxx Fxxxx, Fxxxx, Hxxxxx, Sxxxxxx & Xxxxxx L.L.P.Jxxxxxxx LLP, counsel for the Underwriters, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to the RepresentativesDate. With respect to Sections 6(cthe negative assurance statement or letter, as applicable, to be provided in response to Section 5(c) and 6(d5(d) above, Xxxxxxxx & Xxxxx Proskauer Rose, LLP and Xxxxxx Fried, Fxxxx, Hxxxxx, Sxxxxxx & Xxxxxx L.L.P. Jxxxxxxx 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 Xxxxxxxx & Xxxxx Proskauer Rose, LLP described in Section 6(c5(c) above shall be rendered to the Underwriters at the request of the Company Parties and shall so state therein.
(e) The Representatives Underwriters shall have received from Deloitte a “comfort letter” (the “initial comfort letter”) dated as received, on each of the date hereof and addressed to the UnderwritersClosing Date, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of a letter dated the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the most recent Time of Sale Prospectus, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(f) The Representatives shall have received from Deloitte a “bring-down comfort letter” (the “bring-down comfort letter”) dated as of the Closing Date or the Option Closing Date, as the case may be, and addressed to the Underwriters, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the Closing Date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter, and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(g) The Representatives shall have received from Von Gonten a letter (the “Initial Expert Letter”), dated as of the date hereof, in form and substance satisfactory to the Representatives, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offerings.
(h) The Representatives shall have received from Von Gonten a subsequent letter, dated as of the Closing Date or the Option Closing Date, as the case may be, in form and substance satisfactory to the RepresentativesUnderwriters, which such from each of CohnReznick LLP and PricewaterhouseCoopers, 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 shall cover the period from the Initial Expert Letter to delivered on the Closing Date or shall use a “cut-off date” not earlier than the Option Closing Date, as the case may be, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offeringsdate hereof.
(if) The “lock-up” agreements, each substantially in the form of Exhibit A hereto, between you and all of the Representatives and those certain stockholders, officers and directors of the Company named in Schedule IV hereto relating to sales and certain other dispositions of shares of stock of the Company Common Stock or certain other securities, delivered to you on or before the Representatives date hereof, and “lock-up” agreements between you and each Directed Share Participant relating to sales and certain other dispositions of Reserved Shares, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date.
(j) The Operative Agreements shall have been executed and delivered by the Company Entities party thereto and shall be in full force and effect on such date.
(kg) The several obligations of the Underwriters to purchase Additional Shares hereunder are subject to the delivery to the Representatives 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(b5(b) hereof remains true and correct as of such Option Closing Date;
(ii) an opinion of Xxxxxxxx & Xxxxx LLPProskauer Rose, 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(c5(c) hereof;
(iii) an opinion of Xxxxxx Fxxxx, Fxxxx, Hxxxxx, Sxxxxxx & Xxxxxx L.L.P.Jxxxxxxx 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(d5(d) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the RepresentativesUnderwriters, from DeloitteCohnReznick LLP and PricewaterhouseCoopers, independent public accountants, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(f5(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;
(v) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Von Gonten, independent reserves engineers, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(h) hereof; and
(viv) such other documents as the Representatives you may reasonably request with respect to the good standing of the Company EntitiesCompany, 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 Additional Shares.
(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, dated the date hereof or the Closing Date, as the case may be, containing statements with respect to certain financial information included in each of the Registration Statement, the Preliminary Prospectus and the Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement (Fifth Street Asset Management 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 [●] [a.m./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 the Company Entities its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) 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 Entitiesand its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus that, in the Representatives’ judgment, is material and adverse and that makes it, in the Representatives’ judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Representatives Underwriters shall have received on the Closing Date a certificate, dated the Closing Date, addressed to the Underwriters Date and signed on behalf of the Company by an executive officer of the Company, to the effect set forth in Section 6(a5(a)(i) above and to the effect that the representations and warranties of the Company Parties contained in this Agreement are true and correct as of the Closing Date and that the Company Parties have 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 Representatives Underwriters shall have received on the Closing Date (i) an opinion and (ii) a negative assurance letter of Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxx LLPXxxxxx Professional Corporation, outside counsel for the Company, dated the Closing Date and addressed to the UnderwritersDate, in form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as Exhibit C.Underwriters.
(d) The Representatives Underwriters shall have received on the Closing Date (i) an opinion and (ii) a negative assurance letter of Xxxxxx Xxxxx Xxxx & Xxxxxx L.L.P.Xxxxxxxx LLP, counsel for the Underwriters, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives. With respect to Sections 6(c) and 6(d) above, Xxxxxxxx & Xxxxx LLP and Xxxxxx & Xxxxxx L.L.P. 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 Xxxxxxxx & Xxxxx LLP described in Section 6(c) above shall be rendered to the Underwriters at the request of the Company Parties and shall so state therein.
(e) The Representatives shall have received from Deloitte a “comfort letter” (the “initial comfort letter”) dated as of the date hereof and addressed to the Underwriters, in form and substance satisfactory to the RepresentativesUnderwriters.
(e) The Underwriters shall have received, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as on each of the date hereof (or, with respect to matters involving changes or developments since and the respective dates as of which specified financial information is given in the most recent Time of Sale Prospectus, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(f) The Representatives shall have received from Deloitte a “bring-down comfort letter” (the “bring-down comfort letter”) dated as of the Closing Date or the Option Closing Date, as the case may be, and addressed to the Underwriters, in form and substance satisfactory to the Representatives, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the Closing Date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than three days prior to letter dated the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter, and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(g) The Representatives shall have received from Von Gonten a letter (the “Initial Expert Letter”), dated as of the date hereof, in form and substance satisfactory to the Representatives, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offerings.
(h) The Representatives shall have received from Von Gonten a subsequent letter, dated as of the Closing Date hereof or the Option Closing Date, as the case may be, in form and substance satisfactory to the RepresentativesUnderwriters, which such from 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 shall cover the period from the Initial Expert Letter to delivered on the Closing Date or shall use a “cut-off date” not earlier than the Option Closing Date, as the case may be, stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offeringsdate hereof.
(if) The “lock-uplock‑up” agreements, each substantially in the form of Exhibit A hereto, between the Representatives and those certain stockholdersshareholders, officers and directors of the Company named in Schedule IV hereto relating to sales and certain other dispositions of shares of stock of the Company Common Stock or certain other securities, delivered to the Representatives on or before the date hereof, shall be in full force and effect on the Closing Date.
(j) The Operative Agreements shall have been executed and delivered by the Company Entities party thereto and shall be in full force and effect on such date.
(kg) The several obligations of the Underwriters to purchase Additional Shares hereunder are subject to the delivery to 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(b5(b) hereof remains true and correct as of such Option Closing Date;
(ii) an opinion of Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxx LLPXxxxxx Professional Corporation, 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(c5(c) hereof;
(iii) an opinion of Xxxxxx Xxxxx Xxxx & Xxxxxx L.L.P.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 6(d5(d) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the RepresentativesUnderwriters, from DeloittePricewaterhouseCoopers LLP, independent public accountants, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(f5(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;
(v) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Von Gonten, independent reserves engineers, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(h) hereof; and
(viv) such other documents as the Representatives may reasonably request with respect to the good standing of the Company EntitiesCompany, 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 Additional Shares.
Appears in 1 contract
Samples: Underwriting Agreement (Quantenna Communications Inc)
