Purchase Sale and Delivery of the Offered Securities. (a) On the basis of the representations, warranties and covenants herein contained, and subject to the conditions herein set forth, the Sellers agree to sell to the Underwriters and each Underwriter agrees, severally and not jointly, to purchase, at a price of US$[·] per ADS, the respective number of Firm ADSs set forth opposite the name of each Underwriter in Schedule I hereof, subject to adjustments in accordance with Section 9 hereof. The number of Firm Shares to be purchased by each Underwriter from each Seller shall be as nearly as practicable in the same proportion to the total number of Firm Shares being sold by each Seller as the number of Firm Shares being purchased by each Underwriter bears to the total number of Firm Shares to be sold hereunder. The obligations of the Company and of each of the Selling Shareholders shall be several and not joint. (b) Certificates (if any) in negotiable form for the total number of the Shares underlying ADSs to be sold hereunder by the Selling Shareholders have been placed in custody with the Company as custodian (the “Custodian”) pursuant to the Letter of Transmittal and Custody Agreement (“Custodian Agreement”) executed by each Selling Shareholder for delivery of all such Shares underlying Firm ADSs and any Option ADSs to be sold hereunder by the Selling Shareholders. Each of the Selling Shareholders specifically agrees that the Shares underlying Firm ADSs and any Option ADSs represented by the certificates (if any) held in custody for the Selling Shareholders under the Custodian Agreement are subject to the interests of the Underwriters hereunder, that the arrangements made by the Selling Shareholders for such custody are to that extent irrevocable, and that the obligations of the Selling Shareholders hereunder shall not be terminable by any act or deed of the Selling Shareholders (or by any other person, firm or corporation including the Company, the Custodian or the Underwriters) or by operation of law (including the death of an individual Selling Shareholder or the dissolution of a corporate Selling Shareholder) or by the occurrence of any other event or events, except as set forth in the Custodian Agreement. If any such event should occur prior to the delivery to the Underwriters of the Shares underlying Firm ADSs or the Option ADSs hereunder, certificates (if any) for the Shares underlying Firm ADSs or the Option ADSs, as the case may be, shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such event has not occurred. The Custodian is authorized to receive and acknowledge receipt of the proceeds of sale of the Shares underlying the Firm ADSs or Option ADSs, as the case may be, held by it against delivery of such Shares underlying the Firm ADSs or Option ADSs, as the case may be. (c) Payment for the Firm ADSs to be sold hereunder is to be made in Federal (same day) funds to an account designated by the Company for the ADSs to be sold by it and to an account designated by the Custodian for the ADSs to be sold by the Selling Shareholders, in each case against delivery of ADRs evidencing the Firm ADSs to the order of the Representative for the several accounts of the Underwriters. Such payment and delivery are to be made through the facilities of The Depository Trust Company, New York, New York at [9:00] a.m., New York time, on [July 5], 2005 or at such other time and date not later than five business days thereafter as you and the Company shall agree upon, such time and date being herein referred to as the “First Closing Date.” (As used herein, “business day” means a day on which the New York Stock Exchange is open for trading and on which banks in New York are open for business and are not permitted by law or executive order to be closed.) The certificates for the Shares represented by the Firm ADSs so delivered shall be in definitive form in such denominations and in such registrations as the Representative requests in writing not later than the second full business day prior to the First Closing Date. (d) In addition, on the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company and the Selling Shareholders listed on Schedule III hereto hereby grant an option to the several Underwriters to purchase the Option ADSs at the price per ADS as set forth in the first paragraph of this Section 2. The maximum number of Option ADSs to be sold by the Company and the Selling Shareholders is set forth opposite their respective names on Schedule III hereto. The option granted hereby may be exercised in whole or in part by giving written notice (i) at any time before the First Closing Date and (ii) only once thereafter within 30 days after the date of this Agreement, by you, as Representative of the several Underwriters, to the Company, the Attorney-in-Fact (as hereinafter defined), and the Custodian setting forth the number of Option ADSs as to which the several Underwriters are exercising the option and the time and date at which such Option ADSs in appropriate form are to be delivered. If the option granted hereby is exercised in part, the respective number of Option ADSs to be sold by the Company and each of the Selling Shareholders listed on Schedule III hereto shall be determined on a pro rata basis in accordance with the percentages set forth opposite their names on Schedule III hereto, adjusted by you in such manner as to avoid fractional shares. The time and date at which the ADRs evidencing the Option ADSs and the certificates for the Shares represented by the Option ADSs are to be delivered shall be determined by the Representative but shall not be earlier than three nor later than 10 full business days after the exercise of such option, nor in any event prior to the Closing Date (such time and date being herein referred to as the “Option Closing Date”; the First Closing Date and any Option Closing Date being sometimes referred to as a “Closing Date”). If the date of exercise of the option is three or more days before the Closing Date, the notice of exercise shall set the First Closing Date as the Option Closing Date. The number of Option ADSs to be purchased by each Underwriter shall be in the same proportion to the total number of Option ADSs being purchased as the number of Firm ADSs being purchased by such Underwriter bears to the total number of Firm ADSs, adjusted by you in such manner as to avoid fractions. The option with respect to the Option ADSs granted hereunder may be exercised only to cover over-allotments in the sale of the Firm ADSs by the Underwriters. You, as Representative of the several Underwriters, may cancel such option at any time prior to its expiration by giving written notice of such cancellation to the Company and the Attorney-in-Fact. To the extent, if any, that the option is exercised, payment for the Option ADSs shall be made on the Option Closing Date in Federal (same day funds) drawn to the order of “ , as Custodian” for the Option ADSs to be sold by the Selling Shareholders against delivery of ADRs therefor through the facilities of The Depository Trust Company, New York, New York. To the extent the option is exercised by the Underwriters, such option will not exceed 15% of the total number of ADSs sold. (e) If on the Closing Date any Selling Shareholder fails to sell the Firm Shares or Option ADSs which such Selling Shareholder has agreed to sell on such date as set forth in Schedule II hereto, the Company agrees that it will sell or arrange for the sale of that number of ADSs to the Underwriters which represents Firm ADSs or the Option ADSs which such Selling Shareholder has failed to so sell, as set forth in Schedule II hereto, or such lesser number as may be requested by the Representative.
Appears in 1 contract
Samples: Underwriting Agreement (Silicon Motion Technology CORP)
Purchase Sale and Delivery of the Offered Securities. (a) The Firm Securities. Upon the terms herein set forth, the Company agrees to issue and sell to the several Underwriters an aggregate of 13,000,000 Shares of Class A Common Stock. On the basis of the representations, warranties and covenants agreements herein contained, and upon the terms but subject to the conditions herein set forth, the Sellers agree Underwriters agree, severally and not jointly, to sell purchase from the Company the respective number of Firm Securities set forth opposite their names on Schedule A. The purchase price per Share to be paid by the several Underwriters to the Company (the “Purchase Price”) shall be (i) $9.80 per Share set forth opposite the name of such Underwriter in Column A-1 of Schedule A, and (ii) $10.00 per Share set forth opposite the name of such Underwriter in Column A-2 of Schedule A.
(b) The First Closing Date. Delivery of the Firm Securities to be purchased by the Underwriters and payment therefor shall be made at 9:00 a.m. New York City time, on March 22, 2021, or such other time and date not later than 1:30 p.m. New York City time on March 22, 2021 as the Representative shall designate by notice to the Company (the time and date of such closing are called the “First Closing Date”). The Company hereby acknowledges that circumstances under which the Representative may provide notice to postpone the First Closing Date as originally scheduled include, but are not limited to, any determination by the Company or the Representative to recirculate to the public copies of an amended or supplemented IPO Prospectus or a delay as contemplated by the provisions of Section 10. Delivery of the Firm Securities shall be made through the facilities of The Depository Trust Company (“DTC”) unless the Representative shall otherwise instruct.
(c) The Optional Securities; Option Closing Date. In addition, on the basis of the representations, warranties and agreements herein contained, and upon the terms but subject to the conditions herein set forth, the Company hereby grants an option to the several Underwriters to purchase, severally and not jointly, up to an aggregate of 1,950,000 Shares of Class A Common Stock from the Company at the purchase price per Share to be paid by the Underwriters for the Firm Securities. The option granted hereunder may be exercised at any time and from time to time in whole or in part upon notice by the Representative to the Company, which notice may be given at any time within 45 days from the date of this Agreement. Such notice shall set forth (i) the aggregate number of Optional Securities as to which the Underwriters are exercising the option and (ii) the time, date and place at which the Optional Securities will be delivered (which time and date may be simultaneous with, but not earlier than, the First Closing Date; and in the event that such time and date are simultaneous with the First Closing Date, the term “First Closing Date” shall refer to the time and date of delivery of the Firm Securities and such Optional Securities). Any such time and date of delivery, if subsequent to the First Closing Date, is called an “Option Closing Date,” shall be determined by the Representative and shall not be earlier than two or later than five full business days after delivery of such notice of exercise. If any Optional Securities are to be purchased, each Underwriter agrees, severally and not jointly, to purchase, at a price of US$[·] per ADS, purchase the respective number of Firm ADSs set forth opposite the name of each Underwriter in Schedule I hereof, Optional Securities (subject to such adjustments in accordance with Section 9 hereof. The number of Firm Shares to be purchased by each Underwriter from each Seller shall be eliminate fractional shares as nearly as practicable in the Representative may determine) that bears the same proportion to the total number of Firm Shares being sold by each Seller as the number of Firm Shares being purchased by each Underwriter bears to the total number of Firm Shares Optional Securities to be sold hereunder. The obligations of the Company and of each of the Selling Shareholders shall be several and not joint.
(b) Certificates (if any) in negotiable form for the total number of the Shares underlying ADSs to be sold hereunder by the Selling Shareholders have been placed in custody with the Company as custodian (the “Custodian”) pursuant to the Letter of Transmittal and Custody Agreement (“Custodian Agreement”) executed by each Selling Shareholder for delivery of all such Shares underlying Firm ADSs and any Option ADSs to be sold hereunder by the Selling Shareholders. Each of the Selling Shareholders specifically agrees that the Shares underlying Firm ADSs and any Option ADSs represented by the certificates (if any) held in custody for the Selling Shareholders under the Custodian Agreement are subject to the interests of the Underwriters hereunder, that the arrangements made by the Selling Shareholders for such custody are to that extent irrevocable, and that the obligations of the Selling Shareholders hereunder shall not be terminable by any act or deed of the Selling Shareholders (or by any other person, firm or corporation including the Company, the Custodian or the Underwriters) or by operation of law (including the death of an individual Selling Shareholder or the dissolution of a corporate Selling Shareholder) or by the occurrence of any other event or events, except as set forth in the Custodian Agreement. If any such event should occur prior to the delivery to the Underwriters of the Shares underlying Firm ADSs or the Option ADSs hereunder, certificates (if any) for the Shares underlying Firm ADSs or the Option ADSs, as the case may be, shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such event has not occurred. The Custodian is authorized to receive and acknowledge receipt of the proceeds of sale of the Shares underlying the Firm ADSs or Option ADSs, as the case may be, held by it against delivery of such Shares underlying the Firm ADSs or Option ADSs, as the case may be.
(c) Payment for the Firm ADSs to be sold hereunder is to be made in Federal (same day) funds to an account designated by the Company for the ADSs to be sold by it and to an account designated by the Custodian for the ADSs to be sold by the Selling Shareholders, in each case against delivery of ADRs evidencing the Firm ADSs to the order of the Representative for the several accounts of the Underwriters. Such payment and delivery are to be made through the facilities of The Depository Trust Company, New York, New York at [9:00] a.m., New York time, on [July 5], 2005 or at such other time and date not later than five business days thereafter as you and the Company shall agree upon, such time and date being herein referred to as the “First Closing Date.” (As used herein, “business day” means a day on which the New York Stock Exchange is open for trading and on which banks in New York are open for business and are not permitted by law or executive order to be closed.) The certificates for the Shares represented by the Firm ADSs so delivered shall be in definitive form in such denominations and in such registrations as the Representative requests in writing not later than the second full business day prior to the First Closing Date.
(d) In addition, on the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company and the Selling Shareholders listed on Schedule III hereto hereby grant an option to the several Underwriters to purchase the Option ADSs at the price per ADS as set forth in the first paragraph of this Section 2. The maximum number of Option ADSs to be sold by the Company and the Selling Shareholders is set forth opposite their respective names on Schedule III hereto. The option granted hereby may be exercised in whole or in part by giving written notice (i) at any time before the First Closing Date and (ii) only once thereafter within 30 days after the date of this Agreement, by you, as Representative of the several Underwriters, to the Company, the Attorney-in-Fact (as hereinafter defined), and the Custodian setting forth the number of Option ADSs as to which the several Underwriters are exercising the option and the time and date at which such Option ADSs in appropriate form are to be delivered. If the option granted hereby is exercised in part, the respective number of Option ADSs to be sold by the Company and each of the Selling Shareholders listed on Schedule III hereto shall be determined on a pro rata basis in accordance with the percentages set forth opposite their names on Schedule III hereto, adjusted by you in such manner as to avoid fractional shares. The time and date at which the ADRs evidencing the Option ADSs and the certificates for the Shares represented by the Option ADSs are to be delivered shall be determined by the Representative but shall not be earlier than three nor later than 10 full business days after the exercise of such option, nor in any event prior to the Closing Date (such time and date being herein referred to as the “Option Closing Date”; the First Closing Date and any Option Closing Date being sometimes referred to as a “Closing Date”). If the date of exercise of the option is three or more days before the Closing Date, the notice of exercise shall set the First Closing Date as the Option Closing Date. The number of Option ADSs to be purchased by each Underwriter shall be in the same proportion to the total number of Option ADSs being purchased as the number of Firm ADSs being purchased by Securities set forth on Schedule A opposite the name of such Underwriter bears to the total number of Firm ADSs, adjusted by you in such manner as to avoid fractionsSecurities. The option with respect to the Option ADSs granted hereunder may be exercised only to cover over-allotments in the sale of the Firm ADSs by the Underwriters. You, as Representative of the several Underwriters, may cancel such the option at any time prior to its expiration by giving written notice of such cancellation to the Company and the Attorney-in-Fact. To the extent, if any, that the option is exercised, payment for the Option ADSs shall be made on the Option Closing Date in Federal (same day funds) drawn to the order of “ , as Custodian” for the Option ADSs to be sold by the Selling Shareholders against delivery of ADRs therefor through the facilities of The Depository Trust Company, New York, New York. To the extent the option is exercised by the Underwriters, such option will not exceed 15% of the total number of ADSs sold.
(ed) If Public Offering of the Offered Securities. The Representative hereby advises the Company that the Underwriters intend to offer for sale to the public initially, on the Closing Date any Selling Shareholder fails to sell the Firm Shares or Option ADSs which such Selling Shareholder has agreed to sell on such date as terms set forth in Schedule II heretothe Registration Statement, the Company agrees that it will sell or arrange for Time of Sale Prospectus and the sale IPO Prospectus, their respective portions of that number of ADSs to the Underwriters which represents Firm ADSs or Offered Securities as soon after this Agreement has been executed and the Option ADSs which such Selling Shareholder Registration Statement has failed to so sell, been declared effective as set forth in Schedule II hereto, or such lesser number as may be requested by the Representative, in its sole judgment, has determined is advisable and practicable.
Appears in 1 contract
Samples: Underwriting Agreement (Research Alliance Corp. II)
Purchase Sale and Delivery of the Offered Securities. (a) On the basis of the representations, warranties and covenants agreements herein contained, and but subject to the terms and conditions herein set forth, the Sellers agree Company agrees to sell to the Underwriters Underwriters, and each Underwriter agreesof the Underwriters, severally and not jointly, agrees to purchasepurchase from the Company, at a purchase price of US$[·] $4.136 per ADSshare, the respective number of Firm ADSs Shares set forth opposite the name of each such Underwriter in Schedule I hereof, subject to adjustments in accordance with Section 9 hereofannexed hereto. The number of Company will deliver the Firm Shares to be purchased by each Underwriter from each Seller shall be as nearly as practicable in the same proportion to the total number of Firm Shares being sold by each Seller as the number of Firm Shares being purchased by each Underwriter bears to the total number of Firm Shares to be sold hereunder. The obligations of the Company and of each of the Selling Shareholders shall be several and not joint.
(b) Certificates (if any) in negotiable form for the total number of the Shares underlying ADSs to be sold hereunder by the Selling Shareholders have been placed in custody with the Company as custodian (the “Custodian”) pursuant to the Letter of Transmittal and Custody Agreement (“Custodian Agreement”) executed by each Selling Shareholder for delivery of all such Shares underlying Firm ADSs and any Option ADSs to be sold hereunder by the Selling Shareholders. Each of the Selling Shareholders specifically agrees that the Shares underlying Firm ADSs and any Option ADSs represented by the certificates (if any) held in custody for the Selling Shareholders under the Custodian Agreement are subject to the interests respective accounts of the Underwriters hereunder, that the arrangements made by the Selling Shareholders for such custody are to that extent irrevocable, and that the obligations against payment of the Selling Shareholders hereunder shall not be terminable purchase price in cash by any act or deed wire transfer of the Selling Shareholders (or by any other person, firm or corporation including the Company, the Custodian or the Underwriters) or by operation of law (including the death of an individual Selling Shareholder or the dissolution of a corporate Selling Shareholder) or by the occurrence of any other event or events, except as set forth in the Custodian Agreement. If any such event should occur prior to the delivery to the Underwriters of the Shares underlying Firm ADSs or the Option ADSs hereunder, certificates (if any) for the Shares underlying Firm ADSs or the Option ADSs, as the case may be, shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such event has not occurred. The Custodian is authorized to receive and acknowledge receipt of the proceeds of sale of the Shares underlying the Firm ADSs or Option ADSs, as the case may be, held by it against delivery of such Shares underlying the Firm ADSs or Option ADSs, as the case may be.
(c) Payment for the Firm ADSs to be sold hereunder is to be made in Federal (same day) immediately available funds to an account or accounts of the Company, which accounts have been designated by the Company for the ADSs to be sold by it and to an account designated by the Custodian for the ADSs to be sold by the Selling Shareholders, in each case against delivery of ADRs evidencing the Firm ADSs writing at least one day prior to the order Closing Date at the office of the Representative for the several accounts of the Underwriters. Such payment and delivery are to be made through the facilities of The Depository Trust CompanyCooley Godward Kronish LLP, New York3000 Xxxxxxx Xx., New York Xxxx Xxxx, Xxxxxxxxxx 00000, at [9:00] a.m., New York time7:00 a.m. Pacific Daylight Time, on [July 5]October 10, 2005 2006, or at such other time and date not later than five seven full business days thereafter as you the Underwriters and the Company shall agree uponmay mutually agree, such time and date being herein referred to as the “First Closing Date.” (As used herein, “business day” means a day on which the New York Stock Exchange is open for trading and on which banks in New York are open for business and are not permitted by law or executive order to be closed.) The certificates for the Firm Shares represented by the Firm ADSs so to be delivered shall will be in definitive form form, in such denominations and registered in such registrations names as the Representative requests in writing not later than Underwriters request and (i) will be made available for checking and packaging at the second full business day above office of Cxxxxx Godward Kronish LLP, at least 24 hours prior to the First Closing Date.
Date or (dii) delivered through the facilities of the Depositary Trust Company (“DTC”) for the respective accounts of the Underwriters. In addition, on the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company and the Selling Shareholders listed on Schedule III hereto hereby grant grants an option to the several Underwriters to purchase purchase, severally and not jointly, the Option ADSs Shares at the price per ADS share as set forth in the first paragraph of this Section 2. The maximum number of Option ADSs Shares to be sold by to each Underwriter shall be the Company and number which bears the Selling Shareholders is same proportion to the aggregate number of Option Shares being purchased as the number of Firm Shares set forth opposite their respective names the name of such Underwriter on Schedule III heretoI hereto bears to the total number of Firm Shares (subject, in each case, to such adjustment as you may determine solely to eliminate fractional shares). The option granted hereby may be exercised in whole or in part by giving written notice (i) at any time before the First Closing Date and (ii) only once thereafter within 30 days after the date of this Underwriting Agreement, by you, as Representative of the several Underwriters, to the Company, the Attorney-in-Fact (as hereinafter defined), and the Custodian Company setting forth the number of Option ADSs as Shares to which the several Underwriters are exercising the option be purchased and the time and date at which such Option ADSs in appropriate form certificates are to be delivered. If delivered in the option granted hereby is exercised in part, the respective number of Option ADSs to be sold by the Company and each of the Selling Shareholders listed on Schedule III hereto shall be determined on a pro rata basis in accordance with the percentages set forth opposite their names on Schedule III hereto, adjusted by you in such same manner as to avoid fractional sharesthe Firm Shares certificates. The time and date at which the ADRs evidencing the Option ADSs and the certificates for the Option Shares represented by the Option ADSs are to be delivered shall be determined by the Representative Underwriters, but shall not be earlier than three nor later than 10 full business days after the exercise of such option, nor in any event prior to the Closing Date (such time and date being herein referred to as the “Option Closing Date”; the First Closing Date and any Option Closing Date being sometimes referred to as a “Closing Date”). If the date of exercise of the option is three or more days before the Closing Date, the notice of exercise shall set the First Closing Date as the Option Closing Date. The number of Option ADSs to be purchased by each Underwriter shall be in the same proportion to the total number of Option ADSs being purchased as the number of Firm ADSs being purchased by such Underwriter bears to the total number of Firm ADSs, adjusted by you in such manner as to avoid fractions. The option with respect to the Option ADSs granted hereunder may be exercised only to cover over-allotments in the sale of the Firm ADSs by the Underwriters. You, as Representative of the several Underwriters, Underwriters may cancel such option at any time prior to its expiration by giving written notice of such cancellation to the Company and the Attorney-in-FactCompany. To the extent, if any, that the option is exercised, payment for the Option ADSs shall Shares will be made on the Option Closing Date in Federal (same day funds) drawn immediately available funds by wire transfer to the order of “ , as Custodian” the Company for the Option ADSs Shares to be sold by the Selling Shareholders it against delivery of ADRs certificates therefor through at the facilities offices of The Depository Trust CompanyCooley Godward Kronish LLP, New York3000 Xxxxxxx Xx., New York. To Xxxx Xxxx, Xxxxxxxxxx 00000 in the extent same manner as the option is exercised by the Underwriters, such option will not exceed 15% delivery of the total number of ADSs soldFirm Shares.
(e) If on the Closing Date any Selling Shareholder fails to sell the Firm Shares or Option ADSs which such Selling Shareholder has agreed to sell on such date as set forth in Schedule II hereto, the Company agrees that it will sell or arrange for the sale of that number of ADSs to the Underwriters which represents Firm ADSs or the Option ADSs which such Selling Shareholder has failed to so sell, as set forth in Schedule II hereto, or such lesser number as may be requested by the Representative.
Appears in 1 contract
Purchase Sale and Delivery of the Offered Securities. (a) The Firm Securities. Upon the terms herein set forth, the Company agrees to issue and sell to the several Underwriters an aggregate of 12,000,000 Ordinary Shares. On the basis of the representations, warranties and covenants agreements herein contained, and upon the terms but subject to the conditions herein set forth, the Sellers agree Underwriters agree, severally and not jointly, to sell purchase from the Company the respective number of Firm Securities set forth opposite their names on Schedule A. The purchase price per Ordinary Shares to be paid by the several Underwriters to the Company (the “Purchase Price”) shall be $9.80 per Ordinary Share set forth opposite the name of such Underwriter in Schedule A.
(b) The First Closing Date. Delivery of the Firm Securities to be purchased by the Underwriters and payment therefor shall be made at 9:00 a.m. New York City time, on January 11, 2021, or such other time and date not later than 1:30 p.m. New York City time on January 11, 2021 as the Representatives shall designate by notice to the Company (the time and date of such closing are called the “First Closing Date”). The Company hereby acknowledges that circumstances under which the Representatives may provide notice to postpone the First Closing Date as originally scheduled include, but are not limited to, any determination by the Company or the Representatives to recirculate to the public copies of an amended or supplemented IPO Prospectus or a delay as contemplated by the provisions of Section 10. Delivery of the Firm Securities shall be made through the facilities of The Depository Trust Company (“DTC”) unless the Representatives shall otherwise instruct.
(c) The Optional Securities; Option Closing Date. In addition, on the basis of the representations, warranties and agreements herein contained, and upon the terms but subject to the conditions herein set forth, the Company hereby grants an option to the several Underwriters to purchase, severally and not jointly, up to an aggregate of 1,800,000 Ordinary Shares from the Company at the purchase price per Ordinary Share to be paid by the Underwriters for the Firm Securities. The option granted hereunder may be exercised at any time and from time to time in whole or in part upon notice by the Representatives to the Company, which notice may be given at any time within 45 days from the date of this Agreement. Such notice shall set forth (i) the aggregate number of Optional Securities as to which the Underwriters are exercising the option and (ii) the time, date and place at which the Optional Securities will be delivered (which time and date may be simultaneous with, but not earlier than, the First Closing Date; and in the event that such time and date are simultaneous with the First Closing Date, the term “First Closing Date” shall refer to the time and date of delivery of the Firm Securities and such Optional Securities). Any such time and date of delivery, if subsequent to the First Closing Date, is called an “Option Closing Date,” and shall be determined by the Representatives and shall not be earlier than two or later than five full business days after delivery of such notice of exercise. If any Optional Securities are to be purchased, each Underwriter agrees, severally and not jointly, to purchase, at a price of US$[·] per ADS, purchase the respective number of Firm ADSs set forth opposite the name of each Underwriter in Schedule I hereof, Optional Securities (subject to such adjustments in accordance with Section 9 hereof. The number of Firm Shares to be purchased by each Underwriter from each Seller shall be eliminate fractional shares as nearly as practicable in the Representatives may determine) that bears the same proportion to the total number of Firm Shares being sold by each Seller as the number of Firm Shares being purchased by each Underwriter bears to the total number of Firm Shares Optional Securities to be sold hereunder. The obligations of the Company and of each of the Selling Shareholders shall be several and not joint.
(b) Certificates (if any) in negotiable form for the total number of the Shares underlying ADSs to be sold hereunder by the Selling Shareholders have been placed in custody with the Company as custodian (the “Custodian”) pursuant to the Letter of Transmittal and Custody Agreement (“Custodian Agreement”) executed by each Selling Shareholder for delivery of all such Shares underlying Firm ADSs and any Option ADSs to be sold hereunder by the Selling Shareholders. Each of the Selling Shareholders specifically agrees that the Shares underlying Firm ADSs and any Option ADSs represented by the certificates (if any) held in custody for the Selling Shareholders under the Custodian Agreement are subject to the interests of the Underwriters hereunder, that the arrangements made by the Selling Shareholders for such custody are to that extent irrevocable, and that the obligations of the Selling Shareholders hereunder shall not be terminable by any act or deed of the Selling Shareholders (or by any other person, firm or corporation including the Company, the Custodian or the Underwriters) or by operation of law (including the death of an individual Selling Shareholder or the dissolution of a corporate Selling Shareholder) or by the occurrence of any other event or events, except as set forth in the Custodian Agreement. If any such event should occur prior to the delivery to the Underwriters of the Shares underlying Firm ADSs or the Option ADSs hereunder, certificates (if any) for the Shares underlying Firm ADSs or the Option ADSs, as the case may be, shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such event has not occurred. The Custodian is authorized to receive and acknowledge receipt of the proceeds of sale of the Shares underlying the Firm ADSs or Option ADSs, as the case may be, held by it against delivery of such Shares underlying the Firm ADSs or Option ADSs, as the case may be.
(c) Payment for the Firm ADSs to be sold hereunder is to be made in Federal (same day) funds to an account designated by the Company for the ADSs to be sold by it and to an account designated by the Custodian for the ADSs to be sold by the Selling Shareholders, in each case against delivery of ADRs evidencing the Firm ADSs to the order of the Representative for the several accounts of the Underwriters. Such payment and delivery are to be made through the facilities of The Depository Trust Company, New York, New York at [9:00] a.m., New York time, on [July 5], 2005 or at such other time and date not later than five business days thereafter as you and the Company shall agree upon, such time and date being herein referred to as the “First Closing Date.” (As used herein, “business day” means a day on which the New York Stock Exchange is open for trading and on which banks in New York are open for business and are not permitted by law or executive order to be closed.) The certificates for the Shares represented by the Firm ADSs so delivered shall be in definitive form in such denominations and in such registrations as the Representative requests in writing not later than the second full business day prior to the First Closing Date.
(d) In addition, on the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company and the Selling Shareholders listed on Schedule III hereto hereby grant an option to the several Underwriters to purchase the Option ADSs at the price per ADS as set forth in the first paragraph of this Section 2. The maximum number of Option ADSs to be sold by the Company and the Selling Shareholders is set forth opposite their respective names on Schedule III hereto. The option granted hereby may be exercised in whole or in part by giving written notice (i) at any time before the First Closing Date and (ii) only once thereafter within 30 days after the date of this Agreement, by you, as Representative of the several Underwriters, to the Company, the Attorney-in-Fact (as hereinafter defined), and the Custodian setting forth the number of Option ADSs as to which the several Underwriters are exercising the option and the time and date at which such Option ADSs in appropriate form are to be delivered. If the option granted hereby is exercised in part, the respective number of Option ADSs to be sold by the Company and each of the Selling Shareholders listed on Schedule III hereto shall be determined on a pro rata basis in accordance with the percentages set forth opposite their names on Schedule III hereto, adjusted by you in such manner as to avoid fractional shares. The time and date at which the ADRs evidencing the Option ADSs and the certificates for the Shares represented by the Option ADSs are to be delivered shall be determined by the Representative but shall not be earlier than three nor later than 10 full business days after the exercise of such option, nor in any event prior to the Closing Date (such time and date being herein referred to as the “Option Closing Date”; the First Closing Date and any Option Closing Date being sometimes referred to as a “Closing Date”). If the date of exercise of the option is three or more days before the Closing Date, the notice of exercise shall set the First Closing Date as the Option Closing Date. The number of Option ADSs to be purchased by each Underwriter shall be in the same proportion to the total number of Option ADSs being purchased as the number of Firm ADSs being purchased by Securities set forth on Schedule A opposite the name of such Underwriter bears to the total number of Firm ADSs, adjusted by you in such manner as to avoid fractionsSecurities. The option with respect to the Option ADSs granted hereunder may be exercised only to cover over-allotments in the sale of the Firm ADSs by the Underwriters. You, as Representative of the several Underwriters, Representatives may cancel such the option at any time prior to its expiration by giving written notice of such cancellation to the Company and the Attorney-in-Fact. To the extent, if any, that the option is exercised, payment for the Option ADSs shall be made on the Option Closing Date in Federal (same day funds) drawn to the order of “ , as Custodian” for the Option ADSs to be sold by the Selling Shareholders against delivery of ADRs therefor through the facilities of The Depository Trust Company, New York, New York. To the extent the option is exercised by the Underwriters, such option will not exceed 15% of the total number of ADSs sold.
(e) If on the Closing Date any Selling Shareholder fails to sell the Firm Shares or Option ADSs which such Selling Shareholder has agreed to sell on such date as set forth in Schedule II hereto, the Company agrees that it will sell or arrange for the sale of that number of ADSs to the Underwriters which represents Firm ADSs or the Option ADSs which such Selling Shareholder has failed to so sell, as set forth in Schedule II hereto, or such lesser number as may be requested by the Representative.
Appears in 1 contract
Purchase Sale and Delivery of the Offered Securities. (a) On the basis of the representations, warranties and covenants herein contained, agreements and subject to the terms and conditions herein set forth, forth herein: (i) the Sellers agree Issuer agrees to issue and sell to the Underwriters each Underwriter and each Underwriter agreesagrees to purchase from the Issuer, severally and not jointly, to purchase, at a price the principal amount of US$[·] per ADS, the respective number of Firm ADSs Offered Securities set forth opposite the name of each such Underwriter in Schedule I hereofE hereto under the column captioned “Principal Amount of Securities to be Purchased from Issuer” at a purchase price (the “Purchase Price”) of 100% of the principal amount thereof on the First Closing Date (as defined below), subject and (ii) the Issuer agrees to adjustments issue and sell and the Underwriters agree to purchase from the Issuer, at the option of the Underwriters, severally and not jointly, not more than the aggregate principal amount of Offered Securities set forth in accordance with Section 9 hereof. The number Schedule E hereto in the column captioned “Principal Amount of Firm Shares Optional Securities to be purchased by from the Issuer if Over-Allotment Exercised in Full”, at a purchase price (the “Optional Purchase Price”) of 100% of the principal amount thereof, it being understood that if any Optional Securities are sold, each Underwriter from each Seller shall be as nearly as practicable in agrees to purchase that number of Optional Securities which bears the same proportion to the total number of Optional Securities as the proportion of the principal amount of Offered Securities purchased by such Underwriter to the total principal amount of Offered Securities purchased by all Underwriters. With respect to the Offered Securities and as consideration for the purchase thereof, [Citi] as the settlement agent of the Underwriters (the “Settlement Agent”) will pay to the Issuer (the day of payment of the Firm Shares being sold Proceeds Amount against delivery of the Offered Securities shall be the “First Closing Date”), the sum total in U.S. dollars of the Purchase Price, the (“Firm Proceeds Amount”) against payment by the Issuer to the Settlement Agent, for the account of the Underwriters, of the sum total in U.S. dollars of [•]% of the principal amount of the Offered Securities plus any expenses payable but not yet paid by the Issuer to the Underwriters pursuant to, and evidenced as provided in, Section 5(n) hereof. With respect to the Optional Securities and as consideration for the purchase thereof, the Settlement Agent will pay to the Issuer, on each Seller Optional Closing Date, the sum total in U.S. dollars of the Optional Purchase Price of the Optional Securities purchased on such Optional Closing Date (the “Optional Proceeds Amount”) against payment by the Issuer to the Settlement Agent of the sum total in U.S. dollars of [•] of the principal amount of the Optional Securities purchased on such Optional Closing Date.
(b) On each Closing Date the Issuer will deliver against payment of the purchase price therefor the Offered Securities in the form of one or more permanent global securities in registered definitive form (the “Global Securities”) deposited with the Trustee as custodian for The Depository Trust Company (“DTC”) and registered in the name of Cede & Co., as nominee for DTC. Interests in any permanent Global Securities will be held only in book-entry form through DTC, except in the limited circumstances described in the General Disclosure Package. The Global Securities will be made available, at the request of the Representative, for checking at least 24 hours prior to such Closing Date.
(c) The Underwriters may exercise their option to purchase the Optional Securities against payment of the Optional Proceeds Amount from time to time for a period of not more than 30 days after the date of the Prospectus by giving written notice to the Issuer. Such Optional Securities shall be purchased for the account of each Underwriter in the same proportion as the number of Firm Shares being purchased by each Underwriter Securities set forth opposite such Underwriter’s name bears to the total number of Firm Shares to Securities and may be sold hereunder. The obligations of purchased by the Company and of each of the Selling Shareholders shall be several and not joint.
(b) Certificates (if any) in negotiable form Underwriters only for the total number purpose of the Shares underlying ADSs to be sold hereunder by the Selling Shareholders have been placed covering over-allotments made in custody connection with the Company as custodian (the “Custodian”) pursuant to the Letter of Transmittal and Custody Agreement (“Custodian Agreement”) executed by each Selling Shareholder for delivery of all such Shares underlying Firm ADSs and any Option ADSs to be sold hereunder by the Selling Shareholders. Each of the Selling Shareholders specifically agrees that the Shares underlying Firm ADSs and any Option ADSs represented by the certificates (if any) held in custody for the Selling Shareholders under the Custodian Agreement are subject to the interests of the Underwriters hereunder, that the arrangements made by the Selling Shareholders for such custody are to that extent irrevocable, and that the obligations of the Selling Shareholders hereunder shall not be terminable by any act or deed of the Selling Shareholders (or by any other person, firm or corporation including the Company, the Custodian or the Underwriters) or by operation of law (including the death of an individual Selling Shareholder or the dissolution of a corporate Selling Shareholder) or by the occurrence of any other event or events, except as set forth in the Custodian Agreement. If any such event should occur prior to the delivery to the Underwriters of the Shares underlying Firm ADSs or the Option ADSs hereunder, certificates (if any) for the Shares underlying Firm ADSs or the Option ADSs, as the case may be, shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such event has not occurred. The Custodian is authorized to receive and acknowledge receipt of the proceeds of sale of the Shares underlying Securities. No Optional Securities shall be sold or delivered unless the Firm ADSs Securities previously have been, or Option ADSssimultaneously are, as sold and delivered. The right to purchase the case Optional Securities, to the extent not previously exercised, may be, held be surrendered and terminated at any time upon notice by it the Representatives to the Issuer. The time for the payment of the Optional Proceeds Amount against delivery of such Shares underlying the Firm ADSs or Option ADSsOptional Securities, as the case may be.
(c) Payment for the Firm ADSs to be sold hereunder is to be made in Federal (same day) funds to an account designated by the Company for the ADSs to be sold by it and to an account designated by the Custodian for the ADSs to be sold by the Selling Shareholders, in each case against delivery of ADRs evidencing the Firm ADSs to the order of the Representative for the several accounts of the Underwriters. Such payment and delivery are to be made through the facilities of The Depository Trust Company, New York, New York at [9:00] a.m., New York time, on [July 5], 2005 or at such other time and date not later than five business days thereafter as you and the Company shall agree upon, such time and date being herein referred to as the an “First Optional Closing Date.” (As used herein”, “business day” means a day on which the New York Stock Exchange is open for trading and on which banks in New York are open for business and are not permitted by law or executive order to may be closed.) The certificates for the Shares represented by the Firm ADSs so delivered shall be in definitive form in such denominations and in such registrations as the Representative requests in writing not later than the second full business day prior to the First Closing Date.
Date (d) In addition, on the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company and the Selling Shareholders listed on Schedule III hereto hereby grant an option to the several Underwriters to purchase the Option ADSs at the price per ADS as set forth in the first paragraph of this Section 2. The maximum number of Option ADSs to be sold by the Company and the Selling Shareholders is set forth opposite their respective names on Schedule III hereto. The option granted hereby may be exercised in whole or in part by giving written notice (i) at any time before the First Closing Date and (ii) only once thereafter within 30 days after the date of this Agreement, by you, as Representative of the several Underwriters, to the Company, the Attorney-in-Fact (as hereinafter defined), and the Custodian setting forth the number of Option ADSs as to which the several Underwriters are exercising the option and the time and date at which such Option ADSs in appropriate form are to be delivered. If the option granted hereby is exercised in part, the respective number of Option ADSs to be sold by the Company and each of the Selling Shareholders listed on Schedule III hereto shall be determined on a pro rata basis in accordance with the percentages set forth opposite their names on Schedule III hereto, adjusted by you in such manner as to avoid fractional shares. The time and date at which the ADRs evidencing the Option ADSs and the certificates for the Shares represented by the Option ADSs are to be delivered shall be determined by the Representative but shall not be earlier than three nor later than 10 full business days after the exercise of such option, nor in any event prior to the Closing Date (such time and date being herein referred to as the “Option Optional Closing Date”; the First Closing Date and any Option Closing Date , if any, being sometimes referred to as a “Closing Date”), shall be determined by the Representatives but shall be not later than five full business days after a written notice of election to purchase the Optional Securities is given. If The Issuer will deliver the date of exercise Optional Securities being purchased on each Optional Closing Date to or as instructed by the Representatives for the accounts of the option is three several Underwriters in a form reasonably acceptable to the Representatives against payment of the Optional Proceeds Amount in Federal (same day) funds by official bank check or more days before checks or wire transfer to an account maintained by the Closing DateIssuer with an affiliate of the Settlement Agent in New York, the notice of exercise shall set the First Closing Date as the Option New York on each Optional Closing Date. The number of Option ADSs to be Optional Securities being purchased by on each Underwriter shall Optional Closing Date will be in the same proportion to the total number form of Option ADSs being purchased as the number of Firm ADSs being purchased by such Underwriter bears to the total number of Firm ADSs, adjusted by you one or more permanent global securities in such manner as to avoid fractions. The option with respect to the Option ADSs granted hereunder may be exercised only to cover over-allotments in the sale of the Firm ADSs by the Underwriters. You, as Representative of the several Underwriters, may cancel such option at any time prior to its expiration by giving written notice of such cancellation to the Company and the Attorney-in-Fact. To the extent, if any, that the option is exercised, payment for the Option ADSs shall be made on the Option Closing Date in Federal (same day funds) drawn to the order of “ , as Custodian” for the Option ADSs to be sold by the Selling Shareholders against delivery of ADRs therefor through the facilities of The Depository Trust Company, New York, New York. To the extent the option is exercised by the Underwriters, such option will not exceed 15% of the total number of ADSs soldregistered definitive form.
(e) If on the Closing Date any Selling Shareholder fails to sell the Firm Shares or Option ADSs which such Selling Shareholder has agreed to sell on such date as set forth in Schedule II hereto, the Company agrees that it will sell or arrange for the sale of that number of ADSs to the Underwriters which represents Firm ADSs or the Option ADSs which such Selling Shareholder has failed to so sell, as set forth in Schedule II hereto, or such lesser number as may be requested by the Representative.
Appears in 1 contract
Purchase Sale and Delivery of the Offered Securities. (a) On ----------------------------------------------------- the basis of the representations, warranties and covenants agreements herein contained, and subject to the conditions herein set forth, the Sellers agree to sell to the Underwriters and each Underwriter agrees, severally and not jointly, to purchase, at a price of US$[·] per ADS, the respective number of Firm ADSs set forth opposite the name of each Underwriter in Schedule I hereof, subject to adjustments in accordance with Section 9 hereof. The number of Firm Shares to be purchased by each Underwriter from each Seller shall be as nearly as practicable in the same proportion to the total number of Firm Shares being sold by each Seller as the number of Firm Shares being purchased by each Underwriter bears to the total number of Firm Shares to be sold hereunder. The obligations of the Company and of each of the Selling Shareholders shall be several and not joint.
(b) Certificates (if any) in negotiable form for the total number of the Shares underlying ADSs to be sold hereunder by the Selling Shareholders have been placed in custody with the Company as custodian (the “Custodian”) pursuant to the Letter of Transmittal and Custody Agreement (“Custodian Agreement”) executed by each Selling Shareholder for delivery of all such Shares underlying Firm ADSs and any Option ADSs to be sold hereunder by the Selling Shareholders. Each of the Selling Shareholders specifically agrees that the Shares underlying Firm ADSs and any Option ADSs represented by the certificates (if any) held in custody for the Selling Shareholders under the Custodian Agreement are subject to the interests of the Underwriters hereunder, that the arrangements made by the Selling Shareholders for such custody are to that extent irrevocable, and that the obligations of the Selling Shareholders hereunder shall not be terminable by any act or deed of the Selling Shareholders (or by any other person, firm or corporation including the Company, the Custodian or the Underwriters) or by operation of law (including the death of an individual Selling Shareholder or the dissolution of a corporate Selling Shareholder) or by the occurrence of any other event or events, except as set forth in the Custodian Agreement. If any such event should occur prior to the delivery to the Underwriters of the Shares underlying Firm ADSs or the Option ADSs hereunder, certificates (if any) for the Shares underlying Firm ADSs or the Option ADSs, as the case may be, shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such event has not occurred. The Custodian is authorized to receive and acknowledge receipt of the proceeds of sale of the Shares underlying the Firm ADSs or Option ADSs, as the case may be, held by it against delivery of such Shares underlying the Firm ADSs or Option ADSs, as the case may be.
(c) Payment for the Firm ADSs to be sold hereunder is to be made in Federal (same day) funds to an account designated by the Company for the ADSs to be sold by it and to an account designated by the Custodian for the ADSs to be sold by the Selling Shareholders, in each case against delivery of ADRs evidencing the Firm ADSs to the order of the Representative for the several accounts of the Underwriters. Such payment and delivery are to be made through the facilities of The Depository Trust Company, New York, New York at [9:00] a.m., New York time, on [July 5], 2005 or at such other time and date not later than five business days thereafter as you and the Company shall agree upon, such time and date being herein referred to as the “First Closing Date.” (As used herein, “business day” means a day on which the New York Stock Exchange is open for trading and on which banks in New York are open for business and are not permitted by law or executive order to be closed.) The certificates for the Shares represented by the Firm ADSs so delivered shall be in definitive form in such denominations and in such registrations as the Representative requests in writing not later than the second full business day prior to the First Closing Date.
(d) In addition, on the basis of the representations and warranties herein contained and but subject to the terms and conditions herein set forth, the Company agrees to sell to the Initial Purchaser, and the Selling Shareholders listed on Schedule III hereto hereby grant an option to the several Underwriters Initial Purchaser agrees to purchase the Option ADSs at the price per ADS as set forth in the first paragraph of this Section 2. The maximum number of Option ADSs to be sold by the Company and the Selling Shareholders is set forth opposite their respective names on Schedule III hereto. The option granted hereby may be exercised in whole or in part by giving written notice (i) at any time before the First Closing Date and (ii) only once thereafter within 30 days after the date of this Agreement, by you, as Representative of the several Underwriters, to from the Company, at a purchase price of 97.75% of the Attorney-in-Fact principal amount thereof plus accrued interest, if any, from June 30, 1998 to the Firm Closing Date (as hereinafter defined), and $250,000,000 principal amount of Firm Offered Securities.
(b) The Company hereby grants to the Custodian setting forth Initial Purchaser an option to purchase from the number Company, solely for the purpose of covering over-allotments in the sale of Firm Offered Securities, all or any portion of the Additional Offered Securities. The option granted hereunder may be exercised at any time within thirty (30) days from the date hereof at a purchase price of 97.75% of the principal amount thereof plus accrued interest, if any, from June 30, 1998 to the Option ADSs Closing Date (as to which hereinafter defined).
(c) Payment for the several Underwriters are exercising Firm Offered Securities shall be made against delivery of the option and the time and date Firm Offered Securities at which such Option ADSs in appropriate form are a closing to be delivered. If held at the option granted hereby is exercised in partoffices of Weil, Gotshal & Xxxxxx LLP at 10:00 A.M., local time, on June 30, 1998, or at such other time on the respective number of Option ADSs to be sold by the Company and each of the Selling Shareholders listed on Schedule III hereto same or such other date, as shall be determined on a pro rata basis in accordance with by the percentages set forth opposite their names on Schedule III hereto, adjusted by you in such manner as to avoid fractional sharesInitial Purchaser and the Company. The time and date at which the ADRs evidencing the Option ADSs and the certificates for the Shares represented by the Option ADSs are to be delivered shall be determined by the Representative but shall not be earlier than three nor later than 10 full business days after the exercise of such option, nor in any event prior to the Closing Date (such time and date being payment are herein referred to as the “Option Firm Closing Date”; .
(d) Payment for any Additional Offered Securities shall be made against delivery of the First Additional Offered securities at a closing to be held at the offices of Weil, Gotshal & Xxxxxx LLP at 10:00 A.M., local time, on such date (which may be the same as the Closing Date and any Option but shall in no event be earlier than either the Closing Date being sometimes or the second business day after the date on which the option shall have been exercised nor later than five business days after the giving of the notice hereinafter referred to) as shall be designated in a written notice from the Initial Purchaser to the Company of its determination to purchase an aggregate principal amount, specified in said notice, of Additional Offered Securities. The time and date of such payment are hereinafter referred to as a “Closing Date”). If the date of exercise of the option is three or more days before the Closing Date, the notice of exercise shall set the First Closing Date as the Option Closing Date. The number of Option ADSs to be purchased by each Underwriter shall be in the same proportion to the total number of Option ADSs being purchased as the number of Firm ADSs being purchased by such Underwriter bears to the total number of Firm ADSs, adjusted by you in such manner as to avoid fractions. The option with respect to the Option ADSs granted hereunder may be exercised only to cover over-allotments in the sale of the Firm ADSs by the Underwriters. You, as Representative of the several Underwriters, may cancel such option at any time prior to its expiration by giving written notice of such cancellation to the Company Closing Date and the Attorney-in-Fact. To the extent, if any, that the option is exercised, payment for the Option ADSs shall be made on the Option Closing Date in Federal (same day funds) drawn are herein individually referred to as the order of “ , "Closing Date" and collectively referred to as Custodian” for the Option ADSs to be sold by the Selling Shareholders against delivery of ADRs therefor through the facilities of The Depository Trust Company, New York, New York. To the extent the option is exercised by the Underwriters, such option will not exceed 15% of the total number of ADSs sold"Closing Dates".
(e) If on the On each Closing Date any Selling Shareholder fails to sell Date, payment for the Firm Shares Offered Securities and Additional Offered Securities shall be made by certified or Option ADSs which official bank check or checks, or by wire transfer, payable to the order of the Company, in Federal (same day) funds. On each Closing Date, payment will be made against delivery of one or more global debentures in registered form to be deposited with, on behalf of, The Depository Trust Company ("DTC") and registered in the name of Cede & Co., as nominee for DTC, in such Selling Shareholder has agreed denominations and registered in such names as the Initial Purchaser shall request. Time shall be of the essence, and delivery at the time and place specified pursuant to sell on such date as set forth in Schedule II heretothis Agreement is a further condition to the obligation of the Initial Purchaser hereunder. With respect to each Closing Date, the Company agrees that it will sell or arrange shall make available the certificates representing the Offered Securities to be resold for the sale of that number of ADSs to the Underwriters which represents Firm ADSs or the Option ADSs which such Selling Shareholder has failed to so sell, as set forth in Schedule II hereto, or such lesser number as may be requested inspection by the RepresentativeInitial Purchaser in New York, New York not later than 2:00 p.m., New York City time, on the business day prior to such Closing Date.
Appears in 1 contract
Purchase Sale and Delivery of the Offered Securities. (a) The Firm Securities. Upon the terms herein set forth, the Company agrees to issue and sell to the several Underwriters an aggregate of 30,000,000 Units. On the basis of the representations, warranties and covenants agreements herein contained, and upon the terms but subject to the conditions herein set forth, the Sellers agree Underwriters agree, severally and not jointly, to sell purchase from the Company the respective number of Firm Securities set forth opposite their names on Schedule A. The purchase price per Unit to be paid by the several Underwriters to the Company (the “Purchase Price”) shall be $9.80 per Unit set forth opposite the name of such Underwriter in Schedule A.
(b) The First Closing Date. Delivery of the Firm Securities to be purchased by the Underwriters and payment therefor shall be made at 9:00 a.m. New York City time, on September 9, 2020, or such other time and date not later than 1:30 p.m. New York City time on September 23, 2020 as the Representative shall designate by notice to the Company (the time and date of such closing are called the “First Closing Date”). The Company hereby acknowledges that circumstances under which the Representative may provide notice to postpone the First Closing Date as originally scheduled include, but are not limited to, any determination by the Company or the Representative to recirculate to the public copies of an amended or supplemented IPO Prospectus or a delay as contemplated by the provisions of Section 10. Delivery of the Firm Securities shall be made through the facilities of The Depository Trust Company (“DTC”) unless the Representative shall otherwise instruct.
(c) The Optional Securities; Option Closing Date. In addition, on the basis of the representations, warranties and agreements herein contained, and upon the terms but subject to the conditions herein set forth, the Company hereby grants an option to the several Underwriters to purchase, severally and not jointly, up to an aggregate of 4,500,000 Units from the Company at the purchase price per Unit to be paid by the Underwriters for the Firm Securities. The option granted hereunder may be exercised at any time and from time to time in whole or in part upon notice by the Representative to the Company, which notice may be given at any time within 45 days from the date of this Agreement. Such notice shall set forth (i) the aggregate number of Optional Securities as to which the Underwriters are exercising the option and (ii) the time, date and place at which the Optional Securities will be delivered (which time and date may be simultaneous with, but not earlier than, the First Closing Date; and in the event that such time and date are simultaneous with the First Closing Date, the term “First Closing Date” shall refer to the time and date of delivery of the Firm Securities and such Optional Securities). Any such time and date of delivery, if subsequent to the First Closing Date, is called an “Option Closing Date,” and shall be determined by the Representative and shall not be earlier than two or later than five full business days after delivery of such notice of exercise. If any Optional Securities are to be purchased, each Underwriter agrees, severally and not jointly, to purchase, at a price of US$[·] per ADS, purchase the respective number of Firm ADSs set forth opposite the name of each Underwriter in Schedule I hereof, Optional Securities (subject to such adjustments in accordance with Section 9 hereof. The number of Firm Shares to be purchased by each Underwriter from each Seller shall be eliminate fractional shares as nearly as practicable in the Representative may determine) that bears the same proportion to the total number of Firm Shares being sold by each Seller as the number of Firm Shares being purchased by each Underwriter bears to the total number of Firm Shares Optional Securities to be sold hereunder. The obligations of the Company and of each of the Selling Shareholders shall be several and not joint.
(b) Certificates (if any) in negotiable form for the total number of the Shares underlying ADSs to be sold hereunder by the Selling Shareholders have been placed in custody with the Company as custodian (the “Custodian”) pursuant to the Letter of Transmittal and Custody Agreement (“Custodian Agreement”) executed by each Selling Shareholder for delivery of all such Shares underlying Firm ADSs and any Option ADSs to be sold hereunder by the Selling Shareholders. Each of the Selling Shareholders specifically agrees that the Shares underlying Firm ADSs and any Option ADSs represented by the certificates (if any) held in custody for the Selling Shareholders under the Custodian Agreement are subject to the interests of the Underwriters hereunder, that the arrangements made by the Selling Shareholders for such custody are to that extent irrevocable, and that the obligations of the Selling Shareholders hereunder shall not be terminable by any act or deed of the Selling Shareholders (or by any other person, firm or corporation including the Company, the Custodian or the Underwriters) or by operation of law (including the death of an individual Selling Shareholder or the dissolution of a corporate Selling Shareholder) or by the occurrence of any other event or events, except as set forth in the Custodian Agreement. If any such event should occur prior to the delivery to the Underwriters of the Shares underlying Firm ADSs or the Option ADSs hereunder, certificates (if any) for the Shares underlying Firm ADSs or the Option ADSs, as the case may be, shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such event has not occurred. The Custodian is authorized to receive and acknowledge receipt of the proceeds of sale of the Shares underlying the Firm ADSs or Option ADSs, as the case may be, held by it against delivery of such Shares underlying the Firm ADSs or Option ADSs, as the case may be.
(c) Payment for the Firm ADSs to be sold hereunder is to be made in Federal (same day) funds to an account designated by the Company for the ADSs to be sold by it and to an account designated by the Custodian for the ADSs to be sold by the Selling Shareholders, in each case against delivery of ADRs evidencing the Firm ADSs to the order of the Representative for the several accounts of the Underwriters. Such payment and delivery are to be made through the facilities of The Depository Trust Company, New York, New York at [9:00] a.m., New York time, on [July 5], 2005 or at such other time and date not later than five business days thereafter as you and the Company shall agree upon, such time and date being herein referred to as the “First Closing Date.” (As used herein, “business day” means a day on which the New York Stock Exchange is open for trading and on which banks in New York are open for business and are not permitted by law or executive order to be closed.) The certificates for the Shares represented by the Firm ADSs so delivered shall be in definitive form in such denominations and in such registrations as the Representative requests in writing not later than the second full business day prior to the First Closing Date.
(d) In addition, on the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company and the Selling Shareholders listed on Schedule III hereto hereby grant an option to the several Underwriters to purchase the Option ADSs at the price per ADS as set forth in the first paragraph of this Section 2. The maximum number of Option ADSs to be sold by the Company and the Selling Shareholders is set forth opposite their respective names on Schedule III hereto. The option granted hereby may be exercised in whole or in part by giving written notice (i) at any time before the First Closing Date and (ii) only once thereafter within 30 days after the date of this Agreement, by you, as Representative of the several Underwriters, to the Company, the Attorney-in-Fact (as hereinafter defined), and the Custodian setting forth the number of Option ADSs as to which the several Underwriters are exercising the option and the time and date at which such Option ADSs in appropriate form are to be delivered. If the option granted hereby is exercised in part, the respective number of Option ADSs to be sold by the Company and each of the Selling Shareholders listed on Schedule III hereto shall be determined on a pro rata basis in accordance with the percentages set forth opposite their names on Schedule III hereto, adjusted by you in such manner as to avoid fractional shares. The time and date at which the ADRs evidencing the Option ADSs and the certificates for the Shares represented by the Option ADSs are to be delivered shall be determined by the Representative but shall not be earlier than three nor later than 10 full business days after the exercise of such option, nor in any event prior to the Closing Date (such time and date being herein referred to as the “Option Closing Date”; the First Closing Date and any Option Closing Date being sometimes referred to as a “Closing Date”). If the date of exercise of the option is three or more days before the Closing Date, the notice of exercise shall set the First Closing Date as the Option Closing Date. The number of Option ADSs to be purchased by each Underwriter shall be in the same proportion to the total number of Option ADSs being purchased as the number of Firm ADSs being purchased by Securities set forth on Schedule A opposite the name of such Underwriter bears to the total number of Firm ADSs, adjusted by you in such manner as to avoid fractionsSecurities. The option with respect to the Option ADSs granted hereunder may be exercised only to cover over-allotments in the sale of the Firm ADSs by the Underwriters. You, as Representative of the several Underwriters, may cancel such the option at any time prior to its expiration by giving written notice of such cancellation to the Company and the Attorney-in-Fact. To the extent, if any, that the option is exercised, payment for the Option ADSs shall be made on the Option Closing Date in Federal (same day funds) drawn to the order of “ , as Custodian” for the Option ADSs to be sold by the Selling Shareholders against delivery of ADRs therefor through the facilities of The Depository Trust Company, New York, New York. To the extent the option is exercised by the Underwriters, such option will not exceed 15% of the total number of ADSs sold.
(ed) If Public Offering of the Offered Securities. The Representative hereby advises the Company that the Underwriters intend to offer for sale to the public initially, on the Closing Date any Selling Shareholder fails to sell the Firm Shares or Option ADSs which such Selling Shareholder has agreed to sell on such date as terms set forth in Schedule II heretothe Registration Statement, the Company agrees that it will sell or arrange for Time of Sale Prospectus and the sale IPO Prospectus, their respective portions of that number of ADSs to the Underwriters which represents Firm ADSs or Offered Securities as soon after this Agreement has been executed and the Option ADSs which such Selling Shareholder Registration Statement has failed to so sell, been declared effective as set forth in Schedule II hereto, or such lesser number as may be requested by the Representative, in its sole judgment, has determined is advisable and practicable.
Appears in 1 contract
Samples: Underwriting Agreement (Tailwind Acquisition Corp.)
Purchase Sale and Delivery of the Offered Securities. (a) On the basis of the representations, warranties and covenants herein contained, and subject to the conditions herein set forthherein, the Sellers agree Forward Seller (and the Company, to the extent of any Standby Firm Securities) agrees to sell to the respective Underwriters and each Underwriter agrees, severally and not jointly, to purchasepurchase from the Forward Seller (and from the Company, to the extent of any Standby Firm Securities), at a the price of US$[·] per ADSshare set forth in Schedule IV to the Underwriting Agreement relating to the Offered Securities, the respective number of Firm ADSs Securities set forth opposite the name of each such Underwriter in Schedule I hereof, I-A to the Underwriting Agreement relating to the Offered Securities under the heading “Number of Borrowed Firm Securities to Be Purchased,” subject to adjustments in accordance with Section 9 hereof. The number of Firm Shares 11 hereof and subject, in each case, to be purchased by each Underwriter from each Seller shall be as nearly as practicable in adjustments among the same proportion to the total number of Firm Shares being sold by each Seller Underwriters as the number Managers in their sole discretion shall make to eliminate any sales or purchases of Firm Shares being purchased by each Underwriter bears to the total number of Firm Shares to be sold hereunder. The obligations of the Company and of each of the Selling Shareholders shall be several and not jointfractional Securities.
(b) Certificates (if any) If all of the conditions to effectiveness set forth in negotiable form Section 3 of the Forward Agreement are not satisfied on or prior to the Closing Date, the Forward Seller, in its sole judgment, may choose not to borrow and deliver for sale the total number of Securities set forth in Schedule I-B to the Shares underlying ADSs Underwriting Agreement relating to the Offered Securities opposite its name under the heading “Number of Borrowed Firm Securities to Be Sold.” In addition, in the event that, in the commercially reasonable judgment of the Forward Seller, it is unable to borrow and deliver for sale under this Agreement all of the Borrowed Firm Securities set forth in Schedule I-B to the Underwriting Agreement relating to the Offered Securities opposite its name or if, in such Forward Seller’s commercially reasonable judgment, borrowing such number of Borrowed Firm Securities would entail a stock loan cost in excess of a rate equal to 60 basis points per annum, then the Forward Seller shall be sold hereunder by required to deliver for sale only the Selling Shareholders have been placed in custody with the Company as custodian (the “Custodian”) aggregate number of Securities that such Forward Seller is able to so borrow at or below such cost. If, pursuant to the Letter of Transmittal paragraph above, the Forward Seller does not borrow and Custody Agreement (“Custodian Agreement”) executed by each Selling Shareholder deliver for delivery of sale some or all such Shares underlying Firm ADSs and any Option ADSs to be sold hereunder by the Selling Shareholders. Each of the Selling Shareholders specifically Borrowed Firm Securities, (i) the Forward Seller will use its best efforts to notify the Company no later than 5:00 p.m., New York City time, on the first business day immediately preceding the Closing Date of the number of Borrowed Firm Securities that it will not deliver and (ii) the Company agrees to issue and sell to the respective Underwriters pursuant to Section 9(a) hereof, and each of the Underwriters, severally and not jointly, agrees to purchase from the Company its pro rata portion of the number of Securities that the Shares underlying Firm ADSs Forward Seller does not so borrow and any Option ADSs represented by deliver for sale, at the certificates (if any) held in custody for the Selling Shareholders under the Custodian Agreement are subject to the interests of the Underwriters hereunder, that the arrangements made by the Selling Shareholders for such custody are to that extent irrevocable, and that the obligations of the Selling Shareholders hereunder shall not be terminable by any act or deed of the Selling Shareholders (or by any other person, firm or corporation including the Company, the Custodian or the Underwriters) or by operation of law (including the death of an individual Selling Shareholder or the dissolution of a corporate Selling Shareholder) or by the occurrence of any other event or events, except as price per share set forth in the Custodian Agreement. If any such event should occur prior Schedule IV to the delivery Underwriting Agreement relating to the Underwriters of Offered Securities on the Shares underlying Firm ADSs or the Option ADSs hereunder, certificates (if any) for the Shares underlying Firm ADSs or the Option ADSs, as the case may be, shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such event has not occurred. The Custodian is authorized to receive and acknowledge receipt of the proceeds of sale of the Shares underlying the Firm ADSs or Option ADSs, as the case may be, held by it against delivery of such Shares underlying the Firm ADSs or Option ADSs, as the case may beClosing Date.
(c) Payment for the The Company will deliver any Standby Firm ADSs to be Securities issued and sold hereunder is to be made in Federal (same day) funds to an account designated by the Company for to the ADSs Underwriters pursuant to be sold by it Section 9(a) hereof, and the Forward Seller will deliver, subject to an account designated by paragraph (b) of this Section, the Custodian for the ADSs to be sold by the Selling ShareholdersBorrowed Firm Securities, in each case against delivery of ADRs evidencing the Firm ADSs case, to the order of the Representative Managers for the several accounts of the such Underwriters. Such payment and delivery are to be made , through the facilities of The Depository Trust CompanyCompany (“DTC”) against payment of the purchase price in federal (same day) funds by wire transfer to an account at a bank designated by the Company (in the case of any Standby Firm Securities issued and sold by the Company to the Underwriters pursuant to Section 9(a) hereof) or the Forward Seller (in the case of any Borrowed Firm Securities) at the office of Dxxxx Xxxx & Wxxxxxxx LLP, New York, New York at [9:00] 10:00 a.m., New York City time, on [July 5], 2005 or at such other time and date not later than five business days thereafter as you and the Company shall agree upon, such time and date being herein referred to as the “First Closing Date.” . For purposes of Rule 15c6-1 under the Exchange Act, the Closing Date (As used herein, “business day” means a day on which the New York Stock Exchange is open for trading and on which banks in New York are open for business and are not permitted by law or executive order to be closed.) The certificates for the Shares represented by the Firm ADSs so delivered shall be in definitive form in such denominations and in such registrations as the Representative requests in writing not if later than the second full business day prior otherwise applicable settlement date) shall be the settlement date for payment of funds and delivery of securities for all the Firm Securities sold pursuant to the First Closing Dateoffering.
(d) In addition, on the basis of the representations representations, warranties and warranties agreements herein contained and subject to upon the terms and conditions herein set forthforth herein, subject to the Company’s right to execute one or more Optional Forward Agreements as described in Section 3(e) below, Company and the Selling Shareholders listed on Schedule III hereto hereby grant grants an option to the several Underwriters to purchase all or any portion of the Option ADSs Company Optional Securities at the price per ADS as share set forth in Schedule IV to the first paragraph of this Section 2. The maximum number of Option ADSs Underwriting Agreement relating to be sold the Offered Securities less an amount per share equal to any dividends or distributions declared by the Company and payable on the Selling Shareholders is set forth opposite their respective names Firm Securities but not payable on Schedule III heretothe Company Optional Securities (such per share price, for any Company Optional Securities, the “Option Purchase Price” for such Company Optional Securities). The option granted hereby hereunder will expire thirty (30) days after the date of this Agreement and may be exercised in whole or in part by giving written notice (i) at any from time before to time only for the First Closing Date purpose of covering over-allotments that may be made in connection with the offering and (ii) only once thereafter within 30 days after the date of this Agreement, by you, as Representative distribution of the several Underwriters, Firm Securities upon delivery of an “Exercise Notice” by the Managers to the Company, the Attorney-in-Fact (as hereinafter defined), Forward Seller and the Custodian Company setting forth the number of Option ADSs Optional Securities as to which the several Underwriters are then exercising the option and the time and date at which such Option ADSs in appropriate form are to be delivered. If the option granted hereby is exercised in part, the respective number of Option ADSs to be sold by the Company and each of the Selling Shareholders listed on Schedule III hereto shall be determined on a pro rata basis in accordance with the percentages set forth opposite their names on Schedule III hereto, adjusted by you in such manner as to avoid fractional shares. The time and date at which the ADRs evidencing the Option ADSs and the certificates for the Shares represented by the Option ADSs are to be delivered shall be determined by the Representative but shall not be earlier than three nor later than 10 full business days after the exercise of such option, nor in any event prior to the Closing Date (as defined in the Underwriting Agreement related to the Offered Securities) for such time and date being herein referred to as Optional Securities. Any Borrowed Optional Securities shall be purchased from the “Option Closing Date”; the First Closing Date Forward Seller, and any Option Closing Date being sometimes referred to as a “Closing Date”). If the date of exercise of the option is three or more days before the Closing Date, the notice of exercise Company Optional Securities and/or Standby Optional Securities shall set the First Closing Date as the Option Closing Date. The number of Option ADSs to be purchased by from the Company, in each case, for the account of each Underwriter shall be in the same proportion to the total number of Option ADSs being purchased as the number of Firm ADSs being purchased by Securities set forth opposite such Underwriter Underwriter’s name in Schedule I-A to the Underwriting Agreement relating to the Offered Securities bears to the total number of Firm ADSsSecurities (subject to adjustments in accordance with Section 11 hereof and, adjusted by you in such manner each case, to adjustments among the Underwriters as the Managers in their sole discretion shall make to avoid fractionseliminate any sales or purchases of fractional Securities). No Optional Securities shall be sold or delivered unless the Firm Securities previously have been, or simultaneously are, sold and delivered. The option with respect right to purchase the Option ADSs granted hereunder Optional Securities or any portion thereof not previously exercised may be exercised only to cover over-allotments in the sale of the Firm ADSs by the Underwriters. You, as Representative of the several Underwriters, may cancel such option surrendered and terminated at any time prior to its expiration upon notice by giving written notice of such cancellation the Managers to the Company Forward Seller and the Attorney-in-Fact. To the extent, if any, that the option is exercised, payment for the Option ADSs shall be made on the Option Closing Date in Federal (same day funds) drawn to the order of “ , as Custodian” for the Option ADSs to be sold by the Selling Shareholders against delivery of ADRs therefor through the facilities of The Depository Trust Company, New York, New York. To the extent the option is exercised by the Underwriters, such option will not exceed 15% of the total number of ADSs sold.
(e) If Following the delivery of an Exercise Notice pursuant to Section 3(d) hereof:
(i) The Company may, in its sole judgment, within one business day after the delivery of such Exercise Notice, execute and deliver to the Forward Seller a forward agreement substantially in the form attached hereto as Exhibit A with the Forward Counterparty (each such agreement, an “Optional Forward Agreement”) with respect to the number of Optional Securities set forth in such Exercise Notice. Upon the delivery of any executed Optional Forward Agreement by the Company to the Forward Seller, the Forward Counterparty shall promptly execute and deliver such Optional Forward Agreement to the Company, and upon such execution and delivery, and on the Closing Date any Selling Shareholder fails basis of the representations and warranties herein contained, but subject to the conditions stated in Section 3(f) hereof, the Forward Seller hereby agrees to sell to the Firm Shares or Option ADSs which respective Underwriters the number of Securities underlying such Selling Shareholder has agreed Optional Forward Agreement, and each of the Underwriters agree, severally and not jointly, to sell on purchase from the Forward Seller its pro rata portion of the number of Securities underlying such date Optional Forward Agreement, in each case, at a price per share equal to the Purchase Price.
(ii) If the Company does not timely execute and deliver an Optional Forward Agreement as set forth in Schedule II heretothe immediately preceding paragraph, then, on the basis of the representations and warranties contained in this Agreement, and subject to its terms and conditions, the Company hereby agrees that it will to sell or arrange for to the sale of that respective Underwriters a number of ADSs Company Optional Securities equal to the Underwriters which represents Firm ADSs or number of Optional Securities specified in such Exercise Notice, and each Underwriter agrees, severally and not jointly, to purchase from the Company its pro rata portion of such Company Optional Securities, in each case, at the Option ADSs which Purchase Price for such Selling Shareholder Company Optional Securities.
(f) (i) If, pursuant to Section 3(e)(i) hereof, the Forward Counterparty and the Company enter into an Optional Forward Agreement, but as of the applicable Option Closing Date, (1) the representations and warranties of the Company contained in Section 1 hereto are not true and correct, (2) the Company has failed not performed any obligation under this Agreement as of such Option Closing Date that is required to so sellbe performed on or before such Option Closing Date under this Agreement as of such Option Closing Date, as the case may be, or (3) all of the conditions to the effectiveness set forth in Schedule II heretoSection 3 of such Optional Forward Agreement have not been satisfied (such three sets of conditions, collectively, the “Option Conditions”), the Forward Seller, in its sole judgment, may choose not to borrow and deliver for sale the Securities underlying such Optional Forward Agreement.
(ii) In addition, if pursuant to Section 3(e)(i) hereof, the Forward Counterparty and the Company enter into an Optional Forward Agreement, but in the commercially reasonable judgment of the Forward Seller, it is unable to borrow and deliver for sale all of the Securities underlying such Optional Forward Agreement or if, in such lesser Forward Seller’s commercially reasonable judgment, borrowing such number of Securities would entail a stock loan cost in excess of a rate equal to 60 basis points per annum, then the Forward Seller shall be required to deliver for sale only the aggregate number of Securities that such Forward Seller is able to so borrow at or below such cost.
(iii) To the extent that the Forward Seller does not borrow and deliver for sale some or all of the number of Borrowed Optional Securities underlying an Optional Forward Agreement pursuant to clauses (i) or (ii) above, the Forward Seller will use its best efforts to notify the Company no later than 5:00 p.m., New York City time, on the first business day immediately preceding the applicable Option Closing Date, and the Company agrees to issue and sell to the respective Underwriters pursuant to Section 9(b) hereof a number of Standby Optional Securities equal to the number of Securities that the Forward Seller does not so borrow and deliver for sale, and each of the Underwriters, severally and not jointly, agrees to purchase from the Company its pro rata portion of a number of Standby Optional Securities equal to the number of Securities that the Forward Seller does not so borrow and deliver for sale, in each case, at a price per share equal to the Option Purchase Price (calculated as may be requested by the Representativeif such Standby Optional Securities were Company Optional Securities).
Appears in 1 contract
Purchase Sale and Delivery of the Offered Securities. (a) The Firm Securities. Upon the terms herein set forth, the Company agrees to issue and sell to the several Underwriters an aggregate of 20,000,000 Units. On the basis of the representations, warranties and covenants agreements herein contained, and upon the terms but subject to the conditions herein set forth, the Sellers agree Underwriters agree, severally and not jointly, to sell purchase from the Company the respective number of Firm Securities set forth opposite their names on Schedule A. The purchase price per Unit to be paid by the several Underwriters to the Company (the “Purchase Price”) shall be (i) $9.80 per Unit set forth opposite the name of such Underwriter in Column A-1 of Schedule A, and (ii) $10.00 per Unit set forth opposite the name of such Underwriter in Column A-2 of Schedule A.
(b) The First Closing Date. Delivery of the Firm Securities to be purchased by the Underwriters and payment therefor shall be made at 9:00 a.m. New York City time, on [__], 2020, or such other time and date not later than 1:30 p.m. New York City time on [__], 2020 as the Representative shall designate by notice to the Company (the time and date of such closing are called the “First Closing Date”). The Company hereby acknowledges that circumstances under which the Representative may provide notice to postpone the First Closing Date as originally scheduled include, but are not limited to, any determination by the Company or the Representative to recirculate to the public copies of an amended or supplemented IPO Prospectus or a delay as contemplated by the provisions of Section 10. Delivery of the Firm Securities shall be made through the facilities of The Depository Trust Company (“DTC”) unless the Representative shall otherwise instruct.
(c) The Optional Securities; Option Closing Date. In addition, on the basis of the representations, warranties and agreements herein contained, and upon the terms but subject to the conditions herein set forth, the Company hereby grants an option to the several Underwriters to purchase, severally and not jointly, up to an aggregate of 3,000,000 Units from the Company at the purchase price per Unit to be paid by the Underwriters for the Firm Securities. The option granted hereunder may be exercised at any time and from time to time in whole or in part upon notice by the Representative to the Company, which notice may be given at any time within 45 days from the date of this Agreement. Such notice shall set forth (i) the aggregate number of Optional Securities as to which the Underwriters are exercising the option and (ii) the time, date and place at which the Optional Securities will be delivered (which time and date may be simultaneous with, but not earlier than, the First Closing Date; and in the event that such time and date are simultaneous with the First Closing Date, the term “First Closing Date” shall refer to the time and date of delivery of the Firm Securities and such Optional Securities). Any such time and date of delivery, if subsequent to the First Closing Date, is called an “Option Closing Date,” shall be determined by the Representative and shall not be earlier than two or later than five full business days after delivery of such notice of exercise. If any Optional Securities are to be purchased, each Underwriter agrees, severally and not jointly, to purchase, at a price of US$[·] per ADS, purchase the respective number of Firm ADSs set forth opposite the name of each Underwriter in Schedule I hereof, Optional Securities (subject to such adjustments in accordance with Section 9 hereof. The number of Firm Shares to be purchased by each Underwriter from each Seller shall be eliminate fractional shares as nearly as practicable in the Representative may determine) that bears the same proportion to the total number of Firm Shares being sold by each Seller as the number of Firm Shares being purchased by each Underwriter bears to the total number of Firm Shares Optional Securities to be sold hereunder. The obligations of the Company and of each of the Selling Shareholders shall be several and not joint.
(b) Certificates (if any) in negotiable form for the total number of the Shares underlying ADSs to be sold hereunder by the Selling Shareholders have been placed in custody with the Company as custodian (the “Custodian”) pursuant to the Letter of Transmittal and Custody Agreement (“Custodian Agreement”) executed by each Selling Shareholder for delivery of all such Shares underlying Firm ADSs and any Option ADSs to be sold hereunder by the Selling Shareholders. Each of the Selling Shareholders specifically agrees that the Shares underlying Firm ADSs and any Option ADSs represented by the certificates (if any) held in custody for the Selling Shareholders under the Custodian Agreement are subject to the interests of the Underwriters hereunder, that the arrangements made by the Selling Shareholders for such custody are to that extent irrevocable, and that the obligations of the Selling Shareholders hereunder shall not be terminable by any act or deed of the Selling Shareholders (or by any other person, firm or corporation including the Company, the Custodian or the Underwriters) or by operation of law (including the death of an individual Selling Shareholder or the dissolution of a corporate Selling Shareholder) or by the occurrence of any other event or events, except as set forth in the Custodian Agreement. If any such event should occur prior to the delivery to the Underwriters of the Shares underlying Firm ADSs or the Option ADSs hereunder, certificates (if any) for the Shares underlying Firm ADSs or the Option ADSs, as the case may be, shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such event has not occurred. The Custodian is authorized to receive and acknowledge receipt of the proceeds of sale of the Shares underlying the Firm ADSs or Option ADSs, as the case may be, held by it against delivery of such Shares underlying the Firm ADSs or Option ADSs, as the case may be.
(c) Payment for the Firm ADSs to be sold hereunder is to be made in Federal (same day) funds to an account designated by the Company for the ADSs to be sold by it and to an account designated by the Custodian for the ADSs to be sold by the Selling Shareholders, in each case against delivery of ADRs evidencing the Firm ADSs to the order of the Representative for the several accounts of the Underwriters. Such payment and delivery are to be made through the facilities of The Depository Trust Company, New York, New York at [9:00] a.m., New York time, on [July 5], 2005 or at such other time and date not later than five business days thereafter as you and the Company shall agree upon, such time and date being herein referred to as the “First Closing Date.” (As used herein, “business day” means a day on which the New York Stock Exchange is open for trading and on which banks in New York are open for business and are not permitted by law or executive order to be closed.) The certificates for the Shares represented by the Firm ADSs so delivered shall be in definitive form in such denominations and in such registrations as the Representative requests in writing not later than the second full business day prior to the First Closing Date.
(d) In addition, on the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company and the Selling Shareholders listed on Schedule III hereto hereby grant an option to the several Underwriters to purchase the Option ADSs at the price per ADS as set forth in the first paragraph of this Section 2. The maximum number of Option ADSs to be sold by the Company and the Selling Shareholders is set forth opposite their respective names on Schedule III hereto. The option granted hereby may be exercised in whole or in part by giving written notice (i) at any time before the First Closing Date and (ii) only once thereafter within 30 days after the date of this Agreement, by you, as Representative of the several Underwriters, to the Company, the Attorney-in-Fact (as hereinafter defined), and the Custodian setting forth the number of Option ADSs as to which the several Underwriters are exercising the option and the time and date at which such Option ADSs in appropriate form are to be delivered. If the option granted hereby is exercised in part, the respective number of Option ADSs to be sold by the Company and each of the Selling Shareholders listed on Schedule III hereto shall be determined on a pro rata basis in accordance with the percentages set forth opposite their names on Schedule III hereto, adjusted by you in such manner as to avoid fractional shares. The time and date at which the ADRs evidencing the Option ADSs and the certificates for the Shares represented by the Option ADSs are to be delivered shall be determined by the Representative but shall not be earlier than three nor later than 10 full business days after the exercise of such option, nor in any event prior to the Closing Date (such time and date being herein referred to as the “Option Closing Date”; the First Closing Date and any Option Closing Date being sometimes referred to as a “Closing Date”). If the date of exercise of the option is three or more days before the Closing Date, the notice of exercise shall set the First Closing Date as the Option Closing Date. The number of Option ADSs to be purchased by each Underwriter shall be in the same proportion to the total number of Option ADSs being purchased as the number of Firm ADSs being purchased by Securities set forth on Schedule A opposite the name of such Underwriter bears to the total number of Firm ADSs, adjusted by you in such manner as to avoid fractionsSecurities. The option with respect to the Option ADSs granted hereunder may be exercised only to cover over-allotments in the sale of the Firm ADSs by the Underwriters. You, as Representative of the several Underwriters, may cancel such the option at any time prior to its expiration by giving written notice of such cancellation to the Company and the Attorney-in-Fact. To the extent, if any, that the option is exercised, payment for the Option ADSs shall be made on the Option Closing Date in Federal (same day funds) drawn to the order of “ , as Custodian” for the Option ADSs to be sold by the Selling Shareholders against delivery of ADRs therefor through the facilities of The Depository Trust Company, New York, New York. To the extent the option is exercised by the Underwriters, such option will not exceed 15% of the total number of ADSs sold.
(ed) If Public Offering of the Offered Securities. The Representative hereby advises the Company that the Underwriters intend to offer for sale to the public initially, on the Closing Date any Selling Shareholder fails to sell the Firm Shares or Option ADSs which such Selling Shareholder has agreed to sell on such date as terms set forth in Schedule II heretothe Registration Statement, the Company agrees that it will sell or arrange for Time of Sale Prospectus and the sale IPO Prospectus, their respective portions of that number of ADSs to the Underwriters which represents Firm ADSs or Offered Securities as soon after this Agreement has been executed and the Option ADSs which such Selling Shareholder Registration Statement has failed to so sell, been declared effective as set forth in Schedule II hereto, or such lesser number as may be requested by the Representative, in its sole judgment, has determined is advisable and practicable.
Appears in 1 contract
Purchase Sale and Delivery of the Offered Securities. (a) On the basis of the representations, warranties and covenants herein contained, and subject Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth, the Sellers agree Company agrees to sell to the Underwriters each Underwriter, and each Underwriter agrees, severally and not jointly, to purchasepurchase from the Company, at a purchase price of $10.5144 per share (other than the Affiliate Securities, which shall be purchased at a price of US$[·] $11.00 per ADSAffiliate Security), the respective number amount of the Firm ADSs Securities set forth opposite the such Underwriter’s name of each Underwriter in Schedule I hereof, subject to adjustments in accordance with Section 9 hereof. The number of Firm Shares to be purchased by each Underwriter from each Seller shall be as nearly as practicable in the same proportion to the total number of Firm Shares being sold by each Seller as the number of Firm Shares being purchased by each Underwriter bears to the total number of Firm Shares to be sold hereunder. The obligations of the Company and of each of the Selling Shareholders shall be several and not jointA hereto.
(b) Certificates (if any) in negotiable form for the total number of the Shares underlying ADSs to be sold hereunder by the Selling Shareholders have been placed in custody with the Company as custodian (the “Custodian”) pursuant to the Letter of Transmittal and Custody Agreement (“Custodian Agreement”) executed by each Selling Shareholder for delivery of all such Shares underlying Firm ADSs and any Option ADSs to be sold hereunder by the Selling Shareholders. Each of the Selling Shareholders specifically agrees that the Shares underlying Firm ADSs and any Option ADSs represented by the certificates (if any) held in custody for the Selling Shareholders under the Custodian Agreement are subject to the interests of the Underwriters hereunder, that the arrangements made by the Selling Shareholders for such custody are to that extent irrevocable, and that the obligations of the Selling Shareholders hereunder shall not be terminable by any act or deed of the Selling Shareholders (or by any other person, firm or corporation including the Company, the Custodian or the Underwriters) or by operation of law (including the death of an individual Selling Shareholder or the dissolution of a corporate Selling Shareholder) or by the occurrence of any other event or events, except as set forth in the Custodian Agreement. If any such event should occur prior to the delivery to the Underwriters of the Shares underlying Firm ADSs or the Option ADSs hereunder, certificates (if any) for the Shares underlying Firm ADSs or the Option ADSs, as the case may be, shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such event has not occurred. The Custodian is authorized to receive and acknowledge receipt of the proceeds of sale of the Shares underlying the Firm ADSs or Option ADSs, as the case may be, held by it against delivery of such Shares underlying the Firm ADSs or Option ADSs, as the case may be.
(c) Payment for the Firm ADSs to be sold hereunder is to be made in Federal (same day) funds to an account designated by the Company for the ADSs to be sold by it and to an account designated by the Custodian for the ADSs to be sold by the Selling Shareholders, in each case against delivery of ADRs evidencing the Firm ADSs to the order of the Representative for the several accounts of the Underwriters. Such payment and delivery are to be made through the facilities of The Depository Trust Company, New York, New York at [9:00] a.m., New York time, on [July 5], 2005 or at such other time and date not later than five business days thereafter as you and the Company shall agree upon, such time and date being herein referred to as the “First Closing Date.” (As used herein, “business day” means a day on which the New York Stock Exchange is open for trading and on which banks in New York are open for business and are not permitted by law or executive order to be closed.) The certificates for the Shares represented by the Firm ADSs so delivered shall be in definitive form in such denominations and in such registrations as the Representative requests in writing not later than the second full business day prior to the First Closing Date.
(d) In addition, on the basis of the representations and warranties herein contained and subject Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth, the Company and the Selling Shareholders listed on Schedule III hereto hereby grant grants an option to the several Underwriters to purchase the Option ADSs at the price per ADS as set forth in the first paragraph of this Section 2. The maximum number of Option ADSs to be sold by the Company and the Selling Shareholders is set forth opposite their respective names on Schedule III hereto. The option granted hereby may be exercised in whole or in part by giving written notice (i) at any time before the First Closing Date and (ii) only once thereafter within 30 days after the date of this Agreement, by you, as Representative of the several Underwriters, to from the Company, at the Attorney-in-Fact same purchase price per share as the Underwriters shall pay for the Firm Securities (as hereinafter defined)other than the Affiliate Securities, and which shall be purchased at a price of $11.00 per Affiliate Security) all or less than all of the Custodian setting forth the number of Option ADSs as to which the several Underwriters are exercising the option and the time and date at which such Option ADSs in appropriate form are to Optional Securities. Such Optional Securities shall be delivered. If the option granted hereby is exercised in part, the respective number of Option ADSs to be sold by purchased from the Company and each of the Selling Shareholders listed on Schedule III hereto shall be determined on a pro rata basis in accordance with the percentages set forth opposite their names on Schedule III hereto, adjusted by you in such manner as to avoid fractional shares. The time and date at which the ADRs evidencing the Option ADSs and the certificates for the Shares represented by the Option ADSs are to be delivered shall be determined by the Representative but shall not be earlier than three nor later than 10 full business days after the exercise account of such option, nor in any event prior to the Closing Date (such time and date being herein referred to as the “Option Closing Date”; the First Closing Date and any Option Closing Date being sometimes referred to as a “Closing Date”). If the date of exercise of the option is three or more days before the Closing Date, the notice of exercise shall set the First Closing Date as the Option Closing Date. The number of Option ADSs to be purchased by each Underwriter shall be in the same proportion to the total number of Option ADSs being purchased as the number of Firm ADSs being purchased by Securities set forth opposite such Underwriter Underwriter’s name in Schedule A hereto bears to the total number of Firm ADSs, adjusted Securities (subject to adjustment by you in such manner as the Representatives to avoid eliminate fractions). The Said option with respect to the Option ADSs granted hereunder may be exercised only to cover over-allotments in the sale of the Firm ADSs Securities by the Underwriters. YouSaid option may be exercised in whole or in part from time to time but on not more than two occasions, as Representative on or before the 30th day after the date of this Agreement upon written or telegraphic notice by the several Underwriters, may cancel such option at any time prior to its expiration by giving written notice of such cancellation Representatives to the Company setting forth the number of shares of the Optional Securities as to which the Underwriters are exercising the option and the Attorney-in-Fact. To the extent, if any, that the option is exercised, payment for the Option ADSs shall be made on the Option Closing Date in Federal (same day funds) drawn to the order of “ , as Custodian” for the Option ADSs to be sold by the Selling Shareholders against delivery of ADRs therefor through the facilities of The Depository Trust Company, New York, New York. To the extent the option is exercised by the Underwriters, such option will not exceed 15% of the total number of ADSs soldsettlement date.
(ec) If It is understood and agreed that the Affiliate Securities will initially be reserved for offer and sale to the Affiliate Purchasers upon the terms and subject to the conditions set forth in this Agreement and the Prospectus and will be sold to the Affiliate Purchasers at the offering price to the public set forth on the Closing Date any Selling Shareholder fails cover page to sell the Firm Shares Prospectus. Any Affiliate Securities that are not orally confirmed for purchase by Affiliate Purchasers by the end of the business day on which this Agreement is executed or Option ADSs which other such Selling Shareholder has agreed time established by the Representatives will be offered to sell on such date the public as set forth in Schedule II hereto, the Company agrees that it will sell or arrange for the sale of that number of ADSs to the Underwriters which represents Firm ADSs or the Option ADSs which such Selling Shareholder has failed to so sell, as set forth in Schedule II hereto, or such lesser number as may be requested by the RepresentativeProspectus.
Appears in 1 contract
Purchase Sale and Delivery of the Offered Securities. (a) On the basis of the representations, warranties and covenants herein contained, and subject to the conditions herein set forthherein, the Sellers agree Forward Seller agrees to sell to the Underwriters and each Underwriter agrees, severally and not jointly, to purchasepurchase from the Forward Seller (or from the Company to the extent of any Standby Firm Securities), at a the price of US$[·] per ADSshare set forth in Schedule IV to the Underwriting Agreement relating to the Offered Securities, the respective number of Firm ADSs Securities set forth opposite the name of each such Underwriter in Schedule I hereof, I-A to the Underwriting Agreement relating to the Offered Securities under the heading “Number of Borrowed Firm Securities to Be Purchased,” subject to adjustments in accordance with Section 9 hereof. The number of Firm Shares 11 hereof and subject, in each case, to be purchased by each Underwriter from each Seller shall be as nearly as practicable in adjustments among the same proportion to the total number of Firm Shares being sold by each Seller Underwriters as the number Manager in its sole discretion shall make to eliminate any sales or purchases of Firm Shares being purchased by each Underwriter bears to the total number of Firm Shares to be sold hereunder. The obligations of the Company and of each of the Selling Shareholders shall be several and not jointfractional Securities.
(b) Certificates (if any) If all of the conditions to effectiveness set forth in negotiable form Section 3 of the Forward Agreement are not satisfied on or prior to the Closing Date, the Forward Seller, in its sole judgment, may choose not to borrow and deliver for sale the total number of Securities set forth in Schedule I-B to the Shares underlying ADSs Underwriting Agreement relating to the Offered Securities opposite its name under the heading “Number of Borrowed Firm Securities to Be Sold.” In addition, in the event that, in the commercially reasonable judgment of the Forward Seller, it is unable to borrow and deliver for sale under this Agreement all of the Borrowed Firm Securities set forth in Schedule I-B to the Underwriting Agreement relating to the Offered Securities opposite its name or if, in such Forward Seller’s commercially reasonable judgment, borrowing such number of Borrowed Firm Securities would entail a stock loan cost in excess of a rate equal to 60 basis points per annum, then such Forward Seller shall only be sold hereunder by required to deliver for sale the Selling Shareholders have been placed in custody with the Company as custodian (the “Custodian”) aggregate number of Securities that such Forward Seller is able to so borrow at or below such cost. If, pursuant to the Letter of Transmittal paragraph above, the Forward Seller does not borrow and Custody Agreement (“Custodian Agreement”) executed by each Selling Shareholder deliver for delivery of sale some or all such Shares underlying Firm ADSs and any Option ADSs to be sold hereunder by the Selling Shareholders. Each of the Selling Shareholders specifically Borrowed Firm Securities, the Forward Seller will use its best efforts to notify the Company no later than 5:00 p.m., New York City time, on the first business day immediately preceding the Closing Date and the Company agrees to issue and sell to the Underwriters pursuant to Section 9(a) hereof the number of Securities that the Shares underlying Firm ADSs Forward Seller does not so borrow and any Option ADSs represented by deliver for sale at the certificates (if any) held in custody for the Selling Shareholders under the Custodian Agreement are subject to the interests of the Underwriters hereunder, that the arrangements made by the Selling Shareholders for such custody are to that extent irrevocable, and that the obligations of the Selling Shareholders hereunder shall not be terminable by any act or deed of the Selling Shareholders (or by any other person, firm or corporation including the Company, the Custodian or the Underwriters) or by operation of law (including the death of an individual Selling Shareholder or the dissolution of a corporate Selling Shareholder) or by the occurrence of any other event or events, except as price per share set forth in the Custodian Agreement. If any such event should occur prior Schedule IV to the delivery Underwriting Agreement relating to the Underwriters of Offered Securities on the Shares underlying Firm ADSs or the Option ADSs hereunder, certificates (if any) for the Shares underlying Firm ADSs or the Option ADSs, as the case may be, shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such event has not occurred. The Custodian is authorized to receive and acknowledge receipt of the proceeds of sale of the Shares underlying the Firm ADSs or Option ADSs, as the case may be, held by it against delivery of such Shares underlying the Firm ADSs or Option ADSs, as the case may beClosing Date.
(c) Payment Unless the Option Conditions (as defined in Section 5 hereof) have been satisfied as of the Option Closing Date, then the Forward Seller, in its sole judgment, may choose not to borrow and deliver for sale some or all of the Borrowed Optional Securities as set forth in paragraphs (e) and (f) below. In addition, in the event that, in the commercially reasonable judgment of the Forward Seller, it is unable to borrow and deliver for sale under this Agreement all of the Borrowed Optional Securities (not in excess of the number of Securities set forth in Schedule I-B to the Underwriting Agreement relating to the Offered Securities opposite the Forward Seller’s name) or if, in such Forward Seller’s commercially reasonable judgment, borrowing such number of Borrowed Optional Securities would entail a stock loan cost in excess of a rate equal to 60 basis points per annum, then the Forward Seller shall only be required to deliver for sale the aggregate number of Securities that such Forward Seller is able to so borrow at or below such cost. If, pursuant to the paragraph above, the Forward Seller does not borrow and deliver for sale some or all of the Borrowed Optional Securities, the Forward Seller will use its best efforts to notify the Company no later than 5:00 p.m., New York City time, on the first business day immediately preceding the Option Closing Date and the Company agrees to issue and sell to the Underwriters pursuant to Section 9(b) hereof the number of Securities that the Forward Seller does not so borrow and deliver for sale at the price per share set forth in Schedule IV to the Underwriting Agreement relating to the Offered Securities on the relevant Option Closing Date.
(d) The Company will deliver any Standby Firm Securities issued and sold by the Company to the Underwriters pursuant to Section 9(a), and the Forward Seller will deliver, subject to paragraph (b) of this Section, the Borrowed Firm Securities, in each case, to the Manager for the Firm ADSs to be sold hereunder is to be made accounts of such Underwriters, through the facilities of The Depository Trust Company (“DTC”) against payment of the purchase price in Federal (same day) funds by wire transfer to an account at a bank designated by the Company for (in the ADSs to be sold by it case of any Standby Firm Securities issued and to an account designated by the Custodian for the ADSs to be sold by the Selling Shareholders, in each case against delivery of ADRs evidencing the Firm ADSs Company to the order Underwriters pursuant to Section 9(a) hereof) or the Forward Seller (in the case of any Borrowed Firm Securities) at the Representative for the several accounts office of the Underwriters. Such payment and delivery are to be made through the facilities of The Depository Trust CompanyDxxxx Xxxx & Wxxxxxxx, New York, New York at [9:00] 10:00 a.m., New York City time, on [July 5], 2005 or at such other time and date not later than five business days thereafter as you and the Company shall agree upon, such time and date being herein referred to as the “First Closing Date.” . For purposes of Rule 15c6-1 under the Exchange Act, the Closing Date (As used herein, “business day” means a day on which the New York Stock Exchange is open for trading and on which banks in New York are open for business and are not permitted by law or executive order to be closed.) The certificates for the Shares represented by the Firm ADSs so delivered shall be in definitive form in such denominations and in such registrations as the Representative requests in writing not if later than the second full business day prior otherwise applicable settlement date) shall be the settlement date for payment of funds and delivery of securities for all the Firm Securities sold pursuant to the First Closing Dateoffering.
(de) In addition, on the basis of the representations representations, warranties and warranties agreements herein contained and subject to upon the terms and conditions herein set forthforth herein, each of the Company (in the case of any Standby Optional Securities issued and sold by the Company to the Underwriters pursuant to Section 9(b) hereof) and the Selling Shareholders listed on Schedule III hereto Forward Seller (in the case of any Borrowed Optional Securities) hereby grant grants an option to the several Underwriters to purchase purchase, severally and not jointly, all or any portion of the Option ADSs at the price per ADS as set forth Optional Securities, less (in the first paragraph case of this Section 2. The maximum number of Option ADSs Standby Optional Securities) an amount per Security equal to be sold any dividends or distributions declared by the Company and payable on the Selling Shareholders is set forth opposite their respective names Firm Securities but not payable on Schedule III heretothe Optional Securities. The option granted hereby hereunder will expire thirty (30) days after the date of this Agreement and may be exercised in whole or in part by giving written notice (i) at any from time before to time only for the First Closing Date purpose of covering over-allotments which may be made in connection with the offering and (ii) only once thereafter within 30 days after the date of this Agreement, by you, as Representative distribution of the several Underwriters, Firm Securities upon notice by the Manager to the Company, the Attorney-in-Fact (as hereinafter defined), Forward Seller and the Custodian Company setting forth the number of Option ADSs Optional Securities as to which the several Underwriters are then exercising the option and the time and date at which of payment and delivery for such Option ADSs in appropriate form are to Optional Securities. Such Optional Securities shall be delivered. If purchased from the option granted hereby is exercised in part, the respective number of Option ADSs to be sold by Forward Seller (or from the Company and each to the extent of the Selling Shareholders listed on Schedule III hereto shall be determined on a pro rata basis in accordance with the percentages set forth opposite their names on Schedule III hereto, adjusted by you in such manner as to avoid fractional shares. The time and date at which the ADRs evidencing the Option ADSs and the certificates any Standby Optional Securities) for the Shares represented by the Option ADSs are to be delivered shall be determined by the Representative but shall not be earlier than three nor later than 10 full business days after the exercise account of such option, nor in any event prior to the Closing Date (such time and date being herein referred to as the “Option Closing Date”; the First Closing Date and any Option Closing Date being sometimes referred to as a “Closing Date”). If the date of exercise of the option is three or more days before the Closing Date, the notice of exercise shall set the First Closing Date as the Option Closing Date. The number of Option ADSs to be purchased by each Underwriter shall be in the same proportion to the total number of Option ADSs being purchased as the aggregate number of Firm ADSs being purchased by Securities set forth opposite such Underwriter Underwriter’s name in Schedule I-A to the Underwriting Agreement relating to the Offered Securities bears to the total number of Firm ADSs, adjusted Securities (subject to adjustment by you in such manner as the Manager to avoid eliminate fractions. The option with respect to the Option ADSs granted hereunder ) and may be exercised purchased by the Underwriters only to cover for the purpose of covering over-allotments made in connection with the sale of the Firm ADSs by Securities. No Optional Securities shall be sold or delivered unless the UnderwritersFirm Securities previously have been, or simultaneously are, sold and delivered. You, as Representative of The right to purchase the several Underwriters, Optional Securities or any portion thereof may cancel such option be exercised from time to time and to the extent not previously exercised may be surrendered and terminated at any time prior upon notice by the Manager to its expiration the Forward Seller.
(f) The Company will deliver any Standby Optional Securities issued and sold by giving written notice the Company to the Underwriters pursuant to Section 9(b) hereof and the Forward Seller will deliver, subject to paragraph (c) above, any Borrowed Optional Securities to the Manager for the accounts of such cancellation Underwriters, through the facilities of DTC against payment of the purchase price in Federal (same day) funds by wire transfer to an account at a bank designated by the Company (in the case of any Standby Optional Securities issued and sold by the Company to the Company and Underwriters pursuant to Section 9(b) hereof) or the Attorney-in-Fact. To Forward Seller (in the extent, if any, that case of any Borrowed Optional Securities) at the option is exercised, payment for the Option ADSs shall be made office of Dxxxx Xxxx & Wxxxxxxx on the Option Closing Date in Federal (same day funds) drawn to the order of “ , as Custodian” for the Option ADSs to be sold by the Selling Shareholders against delivery of ADRs therefor through the facilities of The Depository Trust Company, New York, New York. To the extent the option is exercised by the Underwriters, such option will not exceed 15% of the total number of ADSs soldDate.
(e) If on the Closing Date any Selling Shareholder fails to sell the Firm Shares or Option ADSs which such Selling Shareholder has agreed to sell on such date as set forth in Schedule II hereto, the Company agrees that it will sell or arrange for the sale of that number of ADSs to the Underwriters which represents Firm ADSs or the Option ADSs which such Selling Shareholder has failed to so sell, as set forth in Schedule II hereto, or such lesser number as may be requested by the Representative.
Appears in 1 contract
Purchase Sale and Delivery of the Offered Securities. (a) On the basis of the representations, warranties and covenants agreements herein contained, and subject to the conditions herein set forth, the Sellers agree to sell to the Underwriters and each Underwriter agrees, severally and not jointly, to purchase, at a price of US$[·] per ADS, the respective number of Firm ADSs set forth opposite the name of each Underwriter in Schedule I hereof, subject to adjustments in accordance with Section 9 hereof. The number of Firm Shares to be purchased by each Underwriter from each Seller shall be as nearly as practicable in the same proportion to the total number of Firm Shares being sold by each Seller as the number of Firm Shares being purchased by each Underwriter bears to the total number of Firm Shares to be sold hereunder. The obligations of the Company and of each of the Selling Shareholders shall be several and not joint.
(b) Certificates (if any) in negotiable form for the total number of the Shares underlying ADSs to be sold hereunder by the Selling Shareholders have been placed in custody with the Company as custodian (the “Custodian”) pursuant to the Letter of Transmittal and Custody Agreement (“Custodian Agreement”) executed by each Selling Shareholder for delivery of all such Shares underlying Firm ADSs and any Option ADSs to be sold hereunder by the Selling Shareholders. Each of the Selling Shareholders specifically agrees that the Shares underlying Firm ADSs and any Option ADSs represented by the certificates (if any) held in custody for the Selling Shareholders under the Custodian Agreement are subject to the interests of the Underwriters hereunder, that the arrangements made by the Selling Shareholders for such custody are to that extent irrevocable, and that the obligations of the Selling Shareholders hereunder shall not be terminable by any act or deed of the Selling Shareholders (or by any other person, firm or corporation including the Company, the Custodian or the Underwriters) or by operation of law (including the death of an individual Selling Shareholder or the dissolution of a corporate Selling Shareholder) or by the occurrence of any other event or events, except as set forth in the Custodian Agreement. If any such event should occur prior to the delivery to the Underwriters of the Shares underlying Firm ADSs or the Option ADSs hereunder, certificates (if any) for the Shares underlying Firm ADSs or the Option ADSs, as the case may be, shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such event has not occurred. The Custodian is authorized to receive and acknowledge receipt of the proceeds of sale of the Shares underlying the Firm ADSs or Option ADSs, as the case may be, held by it against delivery of such Shares underlying the Firm ADSs or Option ADSs, as the case may be.
(c) Payment for the Firm ADSs to be sold hereunder is to be made in Federal (same day) funds to an account designated by the Company for the ADSs to be sold by it and to an account designated by the Custodian for the ADSs to be sold by the Selling Shareholders, in each case against delivery of ADRs evidencing the Firm ADSs to the order of the Representative for the several accounts of the Underwriters. Such payment and delivery are to be made through the facilities of The Depository Trust Company, New York, New York at [9:00] a.m., New York time, on [July 5], 2005 or at such other time and date not later than five business days thereafter as you and the Company shall agree upon, such time and date being herein referred to as the “First Closing Date.” (As used herein, “business day” means a day on which the New York Stock Exchange is open for trading and on which banks in New York are open for business and are not permitted by law or executive order to be closed.) The certificates for the Shares represented by the Firm ADSs so delivered shall be in definitive form in such denominations and in such registrations as the Representative requests in writing not later than the second full business day prior to the First Closing Date.
(d) In addition, on the basis of the representations and warranties herein contained and but subject to the terms and conditions herein set forth, the Company agrees to sell to the Initial Purchasers, and the Selling Shareholders listed on Schedule III hereto Initial Purchasers agree to purchase from the Company, at a purchase price of 96.75% of the principal amount thereof, $65,000,000 principal amount of Firm Offered Securities.
(b) The Company hereby grant grants to the Initial Purchasers an option to purchase from the several Underwriters to purchase Company, solely for the Option ADSs at the price per ADS as set forth purpose of covering over-allotments in the first paragraph sale of this Section 2. The maximum number Firm Offered Securities, all or any portion of Option ADSs to be sold by the Company and the Selling Shareholders is set forth opposite their respective names on Schedule III heretoAdditional Offered Securities. The option granted hereby hereunder may be exercised in whole or in part by giving written notice (i) at any time before the First Closing Date and within thirty (ii30) only once thereafter within 30 days after from the date hereof at a purchase price of this Agreement96.75% of the principal amount thereof.
(c) Payment for the Firm Offered Securities shall be made against delivery of the Firm Offered Securities at a closing to be held at the offices of Weil, by youGotshal & Xxxxxx LLP at 10:00 A.M., local time, on July 23, 2003, or at such other time on the same or such other date, as Representative of the several Underwriters, to the Company, the Attorney-in-Fact (as hereinafter defined), and the Custodian setting forth the number of Option ADSs as to which the several Underwriters are exercising the option and the time and date at which such Option ADSs in appropriate form are to be delivered. If the option granted hereby is exercised in part, the respective number of Option ADSs to be sold by the Company and each of the Selling Shareholders listed on Schedule III hereto shall be determined on a pro rata basis in accordance with by the percentages set forth opposite their names on Schedule III hereto, adjusted by you in such manner as to avoid fractional sharesInitial Purchasers and the Company. The time and date at which the ADRs evidencing the Option ADSs and the certificates for the Shares represented by the Option ADSs are to be delivered shall be determined by the Representative but shall not be earlier than three nor later than 10 full business days after the exercise of such option, nor in any event prior to the Closing Date (such time and date being payment are herein referred to as the “Option Firm Closing Date”; .
(d) Payment for any Additional Offered Securities shall be made against delivery of the First Additional Offered Securities at a closing to be held at the offices of Weil, Gotshal & Xxxxxx LLP at 10:00 A.M., local time, on such date (which may be the same as the Closing Date and any Option but shall in no event be earlier than either the Closing Date being sometimes or the second business day after the date on which the option shall have been exercised nor later than five business days after the giving of the notice hereinafter referred to) as shall be designated in a written notice from the Initial Purchasers to the Company of their determination to purchase an aggregate principal amount, specified in said notice, of Additional Offered Securities. The time and date of such payment are hereinafter referred to as a “Closing Date”). If the date of exercise of the option is three or more days before the Closing Date, the notice of exercise shall set the First Closing Date as the Option Closing Date. The number of Firm Closing Date and the Option ADSs Closing Date are herein individually referred to be purchased by each Underwriter shall be in the same proportion to the total number of Option ADSs being purchased as the number of Firm ADSs being purchased by such Underwriter bears "Closing Date" and collectively referred to as the total number of Firm ADSs, adjusted by you in such manner as to avoid fractions. The option with respect to the Option ADSs granted hereunder may be exercised only to cover over-allotments in the sale of the Firm ADSs by the Underwriters. You, as Representative of the several Underwriters, may cancel such option at any time prior to its expiration by giving written notice of such cancellation to the Company and the Attorney-in-Fact. To the extent, if any, that the option is exercised"Closing Dates."
(e) On each Closing Date, payment for the Option ADSs Firm Offered Securities and Additional Offered Securities shall be made on by certified or official bank check or checks, or by wire transfer, payable to the Option Closing Date order of the Company, in Federal (same day day) funds) drawn to the order of “ . On each Closing Date, as Custodian” for the Option ADSs to payment will be sold by the Selling Shareholders made against delivery of ADRs therefor through the facilities of one or more global Debentures in registered form to be deposited with, on behalf of, The Depository Trust CompanyCompany ("DTC") and registered in the name of Cede & Co., as nominee for DTC, in such denominations and registered in such names as the Initial Purchasers shall request. Time shall be of the essence, and delivery at the time and place specified pursuant to this Agreement is a further condition to the obligation of the Initial Purchasers hereunder. With respect to each Closing Date, the Company shall make available the certificates representing the Offered Securities to be resold for inspection by the Initial Purchasers in New York, New York. To the extent the option is exercised by the UnderwritersYork not later than 2:00 p.m., such option will not exceed 15% of the total number of ADSs sold.
(e) If New York City time, on the business day prior to such Closing Date any Selling Shareholder fails to sell the Firm Shares or Option ADSs which such Selling Shareholder has agreed to sell on such date as set forth in Schedule II hereto, the Company agrees that it will sell or arrange for the sale of that number of ADSs to the Underwriters which represents Firm ADSs or the Option ADSs which such Selling Shareholder has failed to so sell, as set forth in Schedule II hereto, or such lesser number as may be requested by the RepresentativeDate.
Appears in 1 contract
Samples: Purchase Agreement (Alloy Inc)
Purchase Sale and Delivery of the Offered Securities. (a) On the basis of the representations, warranties and covenants herein contained, agreements and subject to the terms and conditions herein set forthforth herein, (i) the Sellers agree Company agrees to issue and sell to the several Underwriters the New Shares at the Issue Price (as defined below) per share (plus, in accordance with subsection (c) hereof, the Excess Proceeds Amount) and each Underwriter of the Underwriters agrees, severally and not jointly, to purchaseunderwrite and purchase from the Company the respective number of New Shares set forth opposite the names of the Underwriters in Schedule A to the Pricing Agreement under the column captioned “Number of New Shares to Be Purchased by the Underwriters”, at a price of US$[·] per ADS(ii) Infineon agrees to sell to the several Underwriters and each Underwriter agrees to underwrite and purchase from Infineon, severally and not jointly, the respective number of Existing Firm ADSs Underlying Shares set forth opposite the name of each Underwriter the Underwriters in Schedule I hereof, subject A to adjustments in accordance with Section 9 hereof. The number the Pricing Agreement under the column captioned “Number of Existing Firm Underlying Shares to be purchased by Purchased from Infineon”, each at the Offer Price (as defined below) per share less the commissions pursuant to subsection (l) hereof, and (iii) Infineon agrees to sell to the several Underwriters, at the option of the Underwriters, an aggregate of not more than 9,450,000 Optional Underlying Shares as set forth in Schedule A to the Pricing Agreement in the column captioned “Number of Optional Underlying Shares to be Purchased from Infineon if Over-Allotment Exercised in Full”, each at the Offer Price (as defined below) per share less the commissions pursuant to subsection (l) hereof, it being understood that if any Optional Underlying Shares are sold, each Underwriter from each Seller shall be as nearly as practicable in agrees to purchase that number of Optional Underlying Shares which bears the same proportion to the total number of Firm Optional Underlying Shares being sold by each Seller as the number proportion of Firm the New Shares being purchased by each such Underwriter bears to the total number of Firm New Shares purchased by all Underwriters, subject at all times to be sold hereunder. The obligations the Representatives’ right to make any necessary adjustments to prevent the sale or purchase of the Company and of each of the Selling Shareholders shall be several and not jointfractional shares.
(b) The offer price at which each Offered Security shall be offered for sale to investors (the “Offer Price”) shall be in U.S. dollars and set forth in the Pricing Agreement (as defined below).
(c) On or about [ ], 2006 the parties hereto expect to enter into a pricing agreement essentially in the form set out in Schedule D hereto (the “Pricing Agreement”), which shall set forth, among other things, the Offer Price. The aggregate U.S. dollar amount to be paid by the Underwriters to the Company pursuant to the Pricing Agreement in respect of the New Shares sold shall be the number of New Shares sold multiplied by the Offer Price, less the total Issue Price (as defined below) for the New Shares and less the commissions specified in subsection (l) in respect of the New Shares sold as set forth in subsection (d) and less any expenses payable but not yet paid by the Company to the Underwriters pursuant to (and evidenced as provided in) Section 6(A)(i) (the “Excess Proceeds Amount”). For purposes of determining the Excess Proceeds Amount, the Issue Price shall be translated into U.S. dollars at the exchange rate used to convert any U.S. dollar amounts to euro for the purpose of paying the Issue Price in euro.
(d) Subject to the conditions set out in Section 8 hereof, Citigroup Global Markets Deutschland AG & Co. KGAA (“Citigroup Deutschland”) for the account of the Underwriters as provided in subsection (e) below, agrees to subscribe for, on the date hereof, the New Shares at an issue price of €2.00 per share each (the “Issue Price”), to pay to the Company an amount (the “Initial Contribution”) equal to €0.50 (being 25% of the Issue Price) for each of the subscribed New Shares in accordance with subsection (f) below for the purpose of effecting the registration of the consummation of the capital increase in the Commercial Register and to cause on the date of such registration payment to the Company of €1.50 (being 75% of the Issue Price) for each of the subscribed New Shares (the “Remaining Contribution”).
(e) For the purpose of effecting the capital increase and the issuance of the New Shares, the Underwriters authorize Citigroup Deutschland to subscribe for the New Shares to be underwritten by the Underwriters at the Issue Price pursuant to the conditions below, and to make available to the Company the full amount of the Issue Price for the New Shares as provided in subsection (d) above. Citigroup Deutschland shall thereby act in its own name, and for the account of the Underwriters. Citigroup Deutschland shall not be liable for the performance of the obligations of the other Underwriters to pay the Excess Proceeds Amount in accordance with subsection (i) hereof.
(i) For the purpose of registering the consummation of the capital increase representing the New Shares in the Commercial Register, Citigroup Deutschland shall, in accordance with the foregoing, and subject to the conditions stated herein, deliver to the Company a subscription certificate in the form attached as Exhibit A hereto (Zeichnungsschein – the “Subscription Certificate”) on the date hereof, duly signed in duplicate form pursuant to Section 185 of the German Stock Corporation Act (Aktiengesetz – “AktG”) and representing [ ] New Shares, such Subscription Certificate, in accordance with its terms, to expire on [ ], 2006, and Citigroup Deutschland, for the account of the Underwriters as provided in subsection (e) above, shall effect payment of the Initial Contribution in respect of the New Shares subscribed for by Citigroup Deutschland with value as of [ ], as initial payment pursuant to Section 36a (1) AktG, to a special account of the Company at Citigroup Deutschland entitled Sonderkonto Kapitalerhöhung (the “Capital Increase Account”), such account to be non-interest bearing and free of charges. Following the deposit in the Capital Increase Account of an amount equal to the Initial Contribution by the Representatives, Citigroup Deutschland shall cause delivery to the Company of a certificate in the form attached as Exhibit B hereto (the “Bank Certificate”), confirming such deposit (Sections 203 (1), 188 (2), 36 (2), 36a (1) and 37 (1) AktG).
(ii) Promptly upon receipt of the Subscription Certificate and the Bank Certificate pursuant to subsection (f)(i) above, the Company shall file the application for the registration of the consummation of the increase in capital with the Commercial Register. The parties intend to file the application for the registration at the latest by 9.00 CET on [ ], 2006, being the date on which the Offer Price is expected to be determined. Copies of all documents filed with the Commercial Register in connection with the registration of the consummation of the increase in capital shall be delivered to the Representatives and Citigroup Deutschland promptly upon such filing.
(iii) Promptly upon the registration of the consummation of the increase in capital in the Commercial Register the Company shall, by telefax with the original copy to follow promptly by courier, furnish the Representatives and Citigroup Deutschland with a certified excerpt of the registration notice of the Commercial Register and a certified excerpt from the Commercial Register, evidencing the registration of the consummation of the increase in capital.
(iv) If the registration in the Commercial Register of the consummation of the increase in the Company’s capital in an amount of €[ ] has not been effected by 24.00 CET on [ ], 2006 (which date and time may by notice to the Company be postponed by the Representatives acting jointly in their sole discretion on behalf of the Underwriters) and in agreement with Citigroup Deutschland, the Subscription Certificate for the New Shares shall expire and Citigroup Deutschland may obtain repayment of the Issue Price by canceling the credit of the aggregate Initial Contribution already paid for the New Shares to the Capital Increase Account. In such event, the Representatives, on behalf of the Underwriters, Citigroup Deutschland, and the Company may agree that Citigroup Deutschland submits a new Subscription Certificate for the New Shares (to expire in accordance with its terms on a date to be mutually determined by the Representatives – acting on behalf of the Underwriters – Citigroup Deutschland and the Company and Infineon) and effect a new credit of the aggregate Initial Contribution for the New Shares to the Capital Increase Account. If the Representatives, on behalf on the Underwriters, Citigroup Deutschland, the Company and Infineon have not agreed on the submission of a new Subscription Certificate for the New Shares on or prior to [ ], 2006, all obligations of the Underwriters to subscribe for and underwrite the New Shares and to purchase the Existing Firm Underlying Shares from the Infineon as well as all obligations of the Company to issue and sell the New Shares and of the Infineon to sell the Existing Firm Underlying Shares to the Underwriters shall terminate. In this event the reimbursement obligation of the Company with respect to costs, charges and expenses incurred pursuant to the terms of Section 6(A)(i) and the provisions set out in Section 10 of this Agreement shall remain in full force and effect.
(g) On the date of registration of the consummation of the increase in capital in the Commercial Register and for value on such date, Citigroup Deutschland, for the account of the Underwriters as provided in subsection (e) above shall cause payment of the Remaining Contribution for the New Shares to be made to the Company against delivery of the Global Share Certificate(s) pursuant to subsection (h) to the Capital Increase Account.
(h) Promptly on the day on which the consummation of the increase in capital relating to the New Shares is registered in the Commercial Register and for value on such date, the Company shall deliver to Citigroup Deutschland one or more global share certificate(s) which shall bear a blank endorsement in the form attached as Exhibit C hereto (each a “Global Share Certificate”) representing the New Shares, against payment of the Remaining Contribution by the Representatives pursuant to subsection (g). Citigroup Deutschland on behalf of the Representatives shall deliver the Global Share Certificate(s) to the Custodian on or prior to the First Closing Date (as defined below), to enable delivery by the Representatives of the Firm ADSs to the other Underwriters or to investors, as the case may be, by way of book-entry.
(i) Subject to the conditions stated herein, the Representatives shall cause payment for the New Shares to the Company, on behalf of the several Underwriters in satisfaction of their obligations to underwrite the New Shares to be issued by the Company hereunder, of the Excess Proceeds Amount. All such payment shall be made on [ ], 2006, or at such other time not later than seven full business days thereafter as the Representatives and the Company determine, such time being referred to herein as the “First Closing Date”, in Federal (same day) funds, by official bank check or checks or wire transfer to the Capital Increase Account maintained by the Company at [ ] in U.S. dollars. In the absence of instructions by the Company to the contrary, the Representatives shall promptly thereafter transfer the complete balance of the Capital Increase Account to the accounts of the Company at [ ], for value on the First Closing Date.
(j) Certificates (if any) in negotiable form for the total number of the Existing Firm Underlying Shares underlying ADSs to be sold by Infineon hereunder by the Selling Shareholders have been placed in custody with the Company as custodian (the “Custodian”) pursuant to the Letter of Transmittal and Custody custody, for delivery under this Agreement (“Custodian Agreement”) executed by each Selling Shareholder for delivery of all such Shares underlying Firm ADSs and any Option ADSs to be sold hereunder by unless this Agreement is terminated in accordance with Section 9, in which case the Selling Shareholdersprovisions contained therein shall apply). Each of the Selling Shareholders specifically Infineon agrees that the Shares underlying Firm ADSs and any Option ADSs shares represented by the certificates (if any) held in custody for the Selling Shareholders under Infineon by the Custodian Agreement are subject to the interests of the Underwriters hereunder. The Custodian will credit the Existing Firm Underlying Shares to the Depositary, that which will deliver ADSs in respect thereof to the arrangements made Representatives for the accounts of the Underwriters against payment of the purchase price, which will be the sum total of the Offer Price per share multiplied by the Selling Shareholders number of Existing Firm Underlying Shares purchased less the commissions deducted pursuant to subsection (l) hereof, in Federal (same day) funds, by official bank checks or wire transfers to accounts at a bank acceptable to the Representatives drawn to the order of Infineon at the First Closing Date. The certificates for such custody are the Existing Firm Underlying Shares so to that extent irrevocablebe delivered will be in definitive form, and that the obligations of the Selling Shareholders hereunder shall not be terminable by any act or deed of the Selling Shareholders (or by any other person, firm or corporation including the Company, delivered to the Custodian on or the Underwriters) or by operation of law (including the death of an individual Selling Shareholder or the dissolution of a corporate Selling Shareholder) or by the occurrence of any other event or events, except as set forth in the Custodian Agreement. If any such event should occur prior to the First Closing Date, to enable delivery by the Representatives of the ADSs in respect thereof to the other Underwriters of the Shares underlying Firm ADSs or the Option ADSs hereunder, certificates (if any) for the Shares underlying Firm ADSs or the Option ADSsto investors, as the case may be, by way of book-entry.
(k) Upon written notice from the Representatives given to the Company and Infineon from time to time not more than 30 days subsequent to the date of the Final Prospectus, the Underwriters may purchase all or less than all of the Optional Securities at the Offer Price per share. Infineon agrees to sell to the Underwriters the number of shares of Optional Securities specified in such notice and the Underwriters agree, severally and not jointly, to purchase such Optional Securities. Such Optional Securities shall be delivered purchased for the account of each Underwriter in the same proportion as the number of shares of Firm Securities set forth opposite such Underwriter’s name bears to the total number of shares of Firm Securities (subject to adjustment by the Custodian Representatives to eliminate fractions) and may be purchased by the Underwriters only for the purpose of covering over-allotments made in accordance connection with the terms and conditions of this Agreement as if such event has not occurred. The Custodian is authorized to receive and acknowledge receipt of the proceeds of sale of the Shares underlying Firm Securities. No Optional Securities shall be sold or delivered unless the Firm ADSs Securities previously have been, or Option ADSssimultaneously are, as sold and delivered. The right to purchase the case Optional Securities or any portion thereof may be, held be exercised from time to time and to the extent not previously exercised may be surrendered and terminated at any time upon notice by it against the Representatives to the Company. The time for the delivery of such Shares underlying the Firm ADSs or Option ADSs, as the case may be.
(c) Payment and payment for the Firm ADSs to be sold hereunder is to be made in Federal (same day) funds to an account designated by the Company for the ADSs to be sold by it and to an account designated by the Custodian for the ADSs to be sold by the Selling ShareholdersOptional Securities, in each case against delivery of ADRs evidencing the Firm ADSs to the order of the Representative for the several accounts of the Underwriters. Such payment and delivery are to be made through the facilities of The Depository Trust Company, New York, New York at [9:00] a.m., New York time, on [July 5], 2005 or at such other time and date not later than five business days thereafter as you and the Company shall agree upon, such time and date being herein referred to as the an “First Optional Closing Date.” (As used herein”, “business day” means a day on which the New York Stock Exchange is open for trading and on which banks in New York are open for business and are not permitted by law or executive order to may be closed.) The certificates for the Shares represented by the Firm ADSs so delivered shall be in definitive form in such denominations and in such registrations as the Representative requests in writing not later than the second full business day prior to the First Closing Date.
Date (d) In addition, on the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company and the Selling Shareholders listed on Schedule III hereto hereby grant an option to the several Underwriters to purchase the Option ADSs at the price per ADS as set forth in the first paragraph of this Section 2. The maximum number of Option ADSs to be sold by the Company and the Selling Shareholders is set forth opposite their respective names on Schedule III hereto. The option granted hereby may be exercised in whole or in part by giving written notice (i) at any time before the First Closing Date and (ii) only once thereafter within 30 days after the date of this Agreement, by you, as Representative of the several Underwriters, to the Company, the Attorney-in-Fact (as hereinafter defined), and the Custodian setting forth the number of Option ADSs as to which the several Underwriters are exercising the option and the time and date at which such Option ADSs in appropriate form are to be delivered. If the option granted hereby is exercised in part, the respective number of Option ADSs to be sold by the Company and each of the Selling Shareholders listed on Schedule III hereto shall be determined on a pro rata basis in accordance with the percentages set forth opposite their names on Schedule III hereto, adjusted by you in such manner as to avoid fractional shares. The time and date at which the ADRs evidencing the Option ADSs and the certificates for the Shares represented by the Option ADSs are to be delivered shall be determined by the Representative but shall not be earlier than three nor later than 10 full business days after the exercise of such option, nor in any event prior to the Closing Date (such time and date being herein referred to as the “Option Optional Closing Date”; the First Closing Date and any Option Closing Date , if any, being sometimes referred to as a “Closing Date”), shall be determined by the Representatives but shall be not later than five full business days after written notice of election to purchase Optional Securities is given. If Infineon will deliver the date of exercise Optional Securities being purchased on each Optional Closing Date to or as instructed by the Representatives for the accounts of the option is three or more days before the Closing Date, the notice of exercise shall set the First Closing Date as the Option Closing Date. The number of Option ADSs to be purchased by each Underwriter shall be several Underwriters in the same proportion a form reasonably acceptable to the Representatives against payment of the purchase price, which will be the sum total number of Option ADSs being purchased as the Offer Price per share multiplied by the number of Firm ADSs being purchased by such Underwriter bears Optional Securities Purchased less the commissions deducted pursuant to the total number of Firm ADSssubsection (l) hereof, adjusted by you in such manner as to avoid fractions. The option with respect to the Option ADSs granted hereunder may be exercised only to cover over-allotments in the sale of the Firm ADSs by the Underwriters. You, as Representative of the several Underwriters, may cancel such option at any time prior to its expiration by giving written notice of such cancellation to the Company and the Attorney-in-Fact. To the extent, if any, that the option is exercised, payment for the Option ADSs shall be made on the Option Closing Date in Federal (same day funds) drawn to the order of “ , as Custodian” for the Option ADSs to be sold by the Selling Shareholders against delivery of ADRs therefor through the facilities of The Depository Trust Company, New York, New York. To the extent the option is exercised by the Underwriters, such option will not exceed 15% of the total number of ADSs sold.
(e) If on the Closing Date any Selling Shareholder fails to sell the Firm Shares or Option ADSs which such Selling Shareholder has agreed to sell on such date as set forth in Schedule II hereto, the Company agrees that it will sell or arrange for the sale of that number of ADSs to the Underwriters which represents Firm ADSs or the Option ADSs which such Selling Shareholder has failed to so sell, as set forth in Schedule II hereto, or such lesser number as may be requested by the Representative.same
Appears in 1 contract
Samples: Underwriting Agreement (Qimonda AG)
Purchase Sale and Delivery of the Offered Securities. (a) On the basis of the representations, warranties and covenants herein contained, and subject to the conditions herein set forth, the Sellers agree Company agrees to sell to the Underwriters and each Underwriter agrees, severally and not jointly, to purchasepurchase from the Company, at a the price of US$[·] per ADSshare set forth in Schedule IV attached hereto, the respective number of Primary Firm ADSs Securities set forth opposite the name of each such Underwriter in Schedule I hereof, I-A attached hereto under the heading “Number of Primary Firm Securities to Be Purchased,” subject to adjustments in accordance with Section 9 hereof11 hereof and subject, in each case, to adjustments among the Underwriters as the Representative in its sole discretion shall make to eliminate any sales or purchases of fractional Securities. The number In addition, on the basis of Firm Shares the representations, warranties and covenants herein contained, and subject to be purchased by the conditions herein set forth, the Forward Seller agrees to sell to the Underwriters and each Underwriter agrees, severally and not jointly, to purchase from each the Forward Seller shall be as nearly as practicable in (or from the same proportion Company to the total number extent of any Standby Firm Shares being sold by each Seller as Securities), at the price per share set forth in Schedule IV attached hereto, the number of Securities set forth opposite the name of such Underwriter in Schedule I-A attached hereto under the heading “Number of Borrowed Firm Shares being purchased by Securities to Be Purchased,” subject to adjustments in accordance with Section 11 hereof and subject, in each Underwriter bears case, to adjustments among the total number Underwriters as the Representative in its sole discretion shall make to eliminate any sales or purchases of Firm Shares to be sold hereunder. The obligations of the Company and of each of the Selling Shareholders shall be several and not jointfractional Securities.
(b) Certificates (if any) If all of the conditions to effectiveness set forth in negotiable form Section 3 of the Forward Agreement are not satisfied on or prior to the First Closing Date, the Forward Seller, in its sole judgment, may choose not to borrow and deliver for sale the total number of Securities set forth in Schedule I-B opposite its name under the Shares underlying ADSs heading “Number of Borrowed Firm Securities to Be Sold.” In addition, in the event that, in the commercially reasonable judgment of the Forward Seller, it is unable to borrow and deliver for sale under this Agreement all of the Borrowed Firm Securities set forth in Schedule I-B opposite its name or if, in such Forward Seller’s commercially reasonable judgment, borrowing such Borrowed Firm Securities would entail a stock loan cost in excess of a rate equal to 100 basis points per annum, then such Forward Seller shall only be sold hereunder by required to deliver for sale the Selling Shareholders have been placed in custody with the Company as custodian (the “Custodian”) aggregate number of Securities that such Forward Seller is able to so borrow at or below such cost. If, pursuant to the Letter of Transmittal paragraph above, the Forward Seller does not borrow and Custody Agreement (“Custodian Agreement”) executed by each Selling Shareholder deliver for delivery of sale some or all such Shares underlying Firm ADSs and any Option ADSs to be sold hereunder by the Selling Shareholders. Each of the Selling Shareholders specifically Borrowed Firm Securities, the Forward Seller will use its best efforts to notify the Company no later than 5:00 P.M. New York City time on the first business day immediately preceding the First Closing Date and the Company agrees to issue and sell to the Underwriters pursuant to Section 10(a) hereof the number of Securities that the Shares underlying Firm ADSs Forward Seller does not so borrow and any Option ADSs represented by deliver for sale at the certificates (if any) held in custody for the Selling Shareholders under the Custodian Agreement are subject to the interests of the Underwriters hereunder, that the arrangements made by the Selling Shareholders for such custody are to that extent irrevocable, and that the obligations of the Selling Shareholders hereunder shall not be terminable by any act or deed of the Selling Shareholders (or by any other person, firm or corporation including the Company, the Custodian or the Underwriters) or by operation of law (including the death of an individual Selling Shareholder or the dissolution of a corporate Selling Shareholder) or by the occurrence of any other event or events, except as price per share set forth in Schedule IV attached hereto on the Custodian Agreement. If any such event should occur prior to the delivery to the Underwriters of the Shares underlying Firm ADSs or the Option ADSs hereunder, certificates (if any) for the Shares underlying Firm ADSs or the Option ADSs, as the case may be, shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such event has not occurred. The Custodian is authorized to receive and acknowledge receipt of the proceeds of sale of the Shares underlying the Firm ADSs or Option ADSs, as the case may be, held by it against delivery of such Shares underlying the Firm ADSs or Option ADSs, as the case may beFirst Closing Date.
(c) Payment Unless (i) the representations and warranties of the Company contained in Section 1 hereof, and any certificate delivered pursuant thereto by the Company, are true and correct as of any Optional Closing Date, (ii) the Company has performed all of the obligations required to be performed by it under this Agreement on or prior to any Optional Closing Date and (iii) the conditions set forth in Section 7 hereof have been satisfied (clauses (i) through (iii), collectively, the “Option Conditions”), then the Forward Seller, in its sole judgment, may choose not to borrow and deliver for sale some or all of the Borrowed Optional Securities as set forth in Section 3(e) and Section 3(f). In addition, in the event that, in the commercially reasonable judgment of the Forward Seller, it is unable to borrow and deliver for sale under this Agreement all of the Borrowed Optional Securities (not in excess of the number of Securities set forth in Schedule I-B opposite the Forward Seller’s name) or if, in such Forward Seller’s commercially reasonable judgment, borrowing such Borrowed Optional Securities would entail a stock loan cost in excess of a rate equal to 100 basis points per annum, then such Forward Seller shall only be required to deliver for sale the aggregate number of Securities that such Forward Seller is able to so borrow at or below such cost. If, pursuant to the paragraph above, the Forward Seller does not borrow and deliver for sale some or all of the Borrowed Optional Securities, the Forward Seller will use its best efforts to notify the Company no later than 5:00 P.M. New York City time on the first business day immediately preceding the Optional Closing Date and the Company agrees to issue and sell to the Underwriters pursuant to Section 10(b) hereof the number of Securities that the Forward Seller does not so borrow and deliver for sale at the price per share set forth in Schedule IV attached hereto on the relevant Optional Closing Date.
(d) The Company will deliver the Primary Firm Securities and any Standby Firm Securities issued and sold by the Company to the Underwriters pursuant to Section 10(a), and the Forward Seller will deliver, subject to paragraph (b) of this Section, the Borrowed Firm Securities, in each case, to the Representative for the Firm ADSs to be sold hereunder is to be made accounts of such Underwriters, through the facilities of The Depository Trust Company (“DTC”) against payment of the purchase price in Federal (same day) funds by wire transfer to an account at a bank designated by the Company for (in the ADSs to be sold by it case of the Primary Firm Securities and to an account designated by the Custodian for the ADSs to be any Standby Firm Securities issued and sold by the Selling Shareholders, in each case against delivery of ADRs evidencing the Firm ADSs Company to the order Underwriters pursuant to Section 10(a) hereof) or the Forward Seller (in the case of any Borrowed Firm Securities) at the Representative for the several accounts office of the Underwriters. Such payment and delivery are to be made through the facilities of The Depository Trust CompanyDxxxx Xxxx & Wxxxxxxx, New Yorkat 10 A.M., New York at [9:00] a.m., New York City time, on [July 5]August 16, 2005 2006, or at such other time and date not later than five business days thereafter as you you, the Company and the Company Forward Seller shall agree upon, such time and date being herein referred to as the “First Closing Date.” For purposes of Rule 15c6-1 under the Exchange Act, the First Closing Date (As used herein, “business day” means a day on which the New York Stock Exchange is open for trading and on which banks in New York are open for business and are not permitted by law or executive order to be closed.) The certificates for the Shares represented by the Firm ADSs so delivered shall be in definitive form in such denominations and in such registrations as the Representative requests in writing not if later than the second full business day prior otherwise applicable settlement date) shall be the settlement date for payment of funds and delivery of securities for all the Firm Securities sold pursuant to the First Closing Dateoffering.
(de) In addition, on the basis of the representations representations, warranties and warranties agreements herein contained and subject to upon the terms and conditions herein set forthforth herein, each of the Company (in the case of any Standby Optional Securities issued and sold by the Selling Shareholders listed on Schedule III hereto Company to the Underwriters pursuant to Section 10(b) hereof) or the Forward Seller (in the case of any Borrowed Optional Securities) hereby grant grants an option to the several Underwriters to purchase purchase, severally and not jointly, all or any portion of the Option ADSs at the price per ADS as set forth Optional Securities, less (in the first paragraph case of this Section 2. The maximum number of Option ADSs Standby Optional Securities) an amount per Security equal to be sold any dividends or distributions declared by the Company and payable on the Selling Shareholders is set forth opposite their respective names Firm Securities but not payable on Schedule III heretothe Optional Securities. The option granted hereby hereunder will expire thirty (30) days after the date of this Agreement and may be exercised in whole or in part by giving written notice (i) at any from time before to time only for the First Closing Date purpose of covering over-allotments which may be made in connection with the offering and (ii) only once thereafter within 30 days after the date of this Agreement, by you, as Representative distribution of the several Underwriters, Firm Securities upon notice by the Representative to the Company, the Attorney-in-Fact (as hereinafter defined), Forward Seller and the Custodian Company setting forth the number of Option ADSs Optional Securities as to which the several Underwriters are then exercising the option and the time and date at which of payment and delivery for such Option ADSs Optional Securities. Such Optional Securities shall be purchased from the Forward Seller (or from the Company to the extent of any Standby Optional Securities) for the account of each Underwriter in appropriate form are to be delivered. If the option granted hereby is exercised in part, same proportion as the respective aggregate number of Option ADSs to be sold by the Company and each of the Selling Shareholders listed on Schedule III hereto shall be determined on a pro rata basis in accordance with the percentages Firm Securities set forth opposite their names on such Underwriter’s name in Schedule III hereto, adjusted by you in such manner as I-A hereto bears to avoid fractional shares. The time and date at which the ADRs evidencing the Option ADSs and the certificates for the Shares represented by the Option ADSs are total number of Firm Securities (subject to be delivered shall be determined adjustment by the Representative but to eliminate fractions) and may be purchased by the Underwriters only for the purpose of covering over-allotments made in connection with the sale of the Firm Securities. No Optional Securities shall not be earlier than three nor later than 10 full business days after sold or delivered unless the exercise of such optionFirm Securities previously have been, nor in or simultaneously are, sold and delivered. The right to purchase the Optional Securities or any event prior portion thereof may be exercised from time to time and to the Closing Date extent not previously exercised may be surrendered and terminated at any time upon notice by the Representative to the Forward Seller.
(such f) Each time for the delivery of and date being payment for the Optional Securities is herein referred to as the an “Option Optional Closing Date”; ,” which may be (but may be no earlier than) the First Closing Date (the First Closing Date and any Option each Optional Closing Date Date, if any, being sometimes referred to as a “Closing Date”). If the date of exercise of the option is three or more days before the Closing Date, the notice of exercise shall set the First Closing Date as the Option Closing Date. The number of Option ADSs to be purchased by each Underwriter and shall be in the same proportion to the total number of Option ADSs being purchased as the number of Firm ADSs being purchased by such Underwriter bears to the total number of Firm ADSs, adjusted by you in such manner as to avoid fractions. The option with respect to the Option ADSs granted hereunder may be exercised only to cover over-allotments in the sale of the Firm ADSs determined by the Underwriters. YouRepresentative, as Representative of the several Underwriters, may cancel such option at any time prior to its expiration by giving but shall be not later than five full business days after written notice of such cancellation election to purchase Optional Securities is given. The Company will deliver any Standby Optional Securities issued and sold by the Company to the Company Underwriters pursuant to Section 10(b) hereof and the Attorney-in-Fact. To Forward Seller will deliver, subject to paragraph (c) of this Section, the extent, if any, that Borrowed Optional Securities to the option is exercised, payment Representative for the Option ADSs shall be made on accounts of such Underwriters, through the Option Closing Date facilities of DTC against payment of the purchase price in Federal (same day fundsday) drawn funds by wire transfer to an account at a bank designated by the order Company (in the case of “ , as Custodian” for the Option ADSs to be any Standby Optional Securities issued and sold by the Selling Shareholders against delivery of ADRs therefor through the facilities of The Depository Trust Company, New York, New York. To the extent the option is exercised by the Underwriters, such option will not exceed 15% of the total number of ADSs sold.
(e) If on the Closing Date any Selling Shareholder fails to sell the Firm Shares or Option ADSs which such Selling Shareholder has agreed to sell on such date as set forth in Schedule II hereto, the Company agrees that it will sell or arrange for the sale of that number of ADSs to the Underwriters which represents Firm ADSs pursuant to Section 10(b) hereof) or the Option ADSs which such Selling Shareholder has failed to so sell, as set forth Forward Seller (in Schedule II hereto, or such lesser number as may be requested by the Representativecase of any Borrowed Optional Securities) at the office of Dxxxx Xxxx & Wxxxxxxx.
Appears in 1 contract
Purchase Sale and Delivery of the Offered Securities. (a) On the basis of the representations, warranties and covenants herein contained, and subject to the conditions herein set forthcontained, the Sellers agree to sell to the Underwriters each Underwriter and each Underwriter agrees, severally and not jointly, to purchase, at a price of US$[·] per ADS, the respective number of Firm ADSs set forth opposite the name of each Underwriter in Schedule I hereof, subject to adjustments in accordance with Section 9 hereof. The number of Firm Shares to be purchased by each Underwriter from each Seller shall be as nearly as practicable in the same proportion to the total number of Firm Shares being sold by each Seller as the number of Firm Shares being purchased by each Underwriter bears to the total number of Firm Shares to be sold hereunder. The obligations of the Company and of each of the Selling Shareholders shall be several and not joint.
(b) Certificates (if any) in negotiable form for the total number of the Shares underlying ADSs to be sold hereunder by the Selling Shareholders have been placed in custody with the Codan Trust Company (Cayman) Limited as custodian (the “Custodian”) pursuant to the Letter of Transmittal and Custody Custodian Agreement (“Custodian Agreement”) executed by each Selling Shareholder for delivery of all such Shares underlying Firm ADSs and any Option ADSs to be sold hereunder by the Selling Shareholders. Each of the Selling Shareholders specifically agrees that the Shares underlying Firm ADSs and any Option ADSs represented by the certificates (if any) held in custody for the Selling Shareholders under the Custodian Agreement are subject to the interests of the Underwriters hereunder, that the arrangements made by the Selling Shareholders for such custody are to that extent irrevocable, and that the obligations of the Selling Shareholders hereunder shall not be terminable by any act or deed of the Selling Shareholders (or by any other person, firm or corporation including the Company, the Custodian or the Underwriters) or by operation of law (including the death of an individual Selling Shareholder or the dissolution of a corporate Selling Shareholder) or by the occurrence of any other event or events, except as set forth in the Custodian Agreement. If any such event should occur prior to the delivery to the Underwriters of the Shares underlying Firm ADSs or the Option ADSs hereunder, certificates (if any) for the Shares underlying Firm ADSs or the Option Options ADSs, as the case may be, shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such event has not occurred. The Custodian is authorized to receive and acknowledge receipt of the proceeds of sale of the Shares underlying the Firm ADSs or Option ADSs, as the case may be, held by it against delivery of such Shares underlying the Firm ADSs or Option ADSs, as the case may be.
(c) Payment for the Firm ADSs to be sold hereunder is to be made in Federal (same day) funds to an account designated by the Company for the ADSs to be sold by it and to an account designated by the Custodian for the ADSs to be sold by the Selling Shareholders, in each case against delivery of ADRs evidencing the Firm ADSs and the certificates for the Shares represented by the Firm ADSs to the order of the Representative for the several accounts of the UnderwritersUnderwriters at the office of Shearman & Sterling LLP, 12/F, Gloucester Tower, The Landmark, 00 Xxxxxx Xxxxxx, Xxxxxxx, Xxxx Xxxx. Such payment and delivery are to be made through the facilities of The Depository Trust Company, New York, New York at [9:00] 9:00 a.m., New York time, on [July 5·], 2005 2004 or at such other time and date not later than five business days thereafter as you and the Company shall agree upon, such time and date being herein referred to as the “First Closing Date.” (As used herein, “business day” means a day on which the New York Stock Exchange Nasdaq National Market is open for trading and on which banks in New York are open for business and are not permitted by law or executive order to be closed.) The ADRs evidencing the Firm ADSs and the certificates for the Shares represented by the Firm ADSs so delivered shall be in definitive form in such denominations and in such registrations as the Representative requests in writing not later than the second full business day prior to the First Closing Date, and will be made available for inspection by the Representative at the above office of Shearman & Sterling LLP at least one business day prior to the Closing Date (as defined hereinafter).
(d) In addition, on the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forthcontained, the Company and the Selling Shareholders listed on Schedule III II hereto hereby grant an option to the several Underwriters to purchase the Option ADSs at the price per ADS as set forth in the first paragraph of this Section 2. The maximum number of Option ADSs to be sold by the Company and the Selling Shareholders is set forth opposite their respective names on Schedule III II hereto. The option granted hereby may be exercised in whole or in part by giving written notice (i) at any time before the First Closing Date and (ii) only once thereafter within 30 days after the date of this Agreement, by you, as Representative of the several Underwriters, to the Company, the Attorney-in-Fact (as hereinafter defineddefined on the signature page hereof), and the Custodian setting forth the number of Option ADSs as to which the several Underwriters are exercising the option and the time and date at which such Option ADSs in appropriate form are to be delivered. If the option granted hereby is exercised in part, the respective number of Option ADSs to be sold by the Company and each of the Selling Shareholders listed on Schedule III II hereto shall be determined on a pro rata basis in accordance with the percentages set forth opposite their names on Schedule III II hereto, adjusted by you in such manner as to avoid fractional shares. The time and date at which the ADRs evidencing the Option ADSs and the certificates for the Shares represented by the Option ADSs are to be delivered shall be determined by the Representative but shall not be earlier than three nor later than 10 ten (10) full business days after the exercise of such option, nor in any event prior to the Closing Date (such time and date being herein referred to as the “Option Closing Date”; ;” the First Closing Date and any Option Closing Date being sometimes referred to as a “Closing Date”). If the date of exercise of the option is three or more days before the Closing Date, the notice of exercise shall set the First Closing Date as the Option Closing Date. The number of Option ADSs to be purchased by each Underwriter shall be in the same proportion to the total number of Option ADSs being purchased as the number of Firm ADSs being purchased by such Underwriter bears to the total number of Firm ADSs, adjusted by you in such manner as to avoid fractions. The option with respect to the Option ADSs granted hereunder may be exercised only to cover over-allotments in the sale of the Firm ADSs by the Underwriters. You, as Representative of the several Underwriters, may cancel such option at any time prior to its expiration by giving written notice of such cancellation to the Company and the Attorney-in-Fact. To the extent, if any, that the option is exercised, payment for the Option ADSs shall be made on the Option Closing Date in Federal (same day funds) drawn to the order of “ “Codan Trust Company (Cayman) Limited, as Custodian” for the Option ADSs to be sold by the Selling Shareholders against delivery of ADRs ADSs therefor through the facilities of The Depository Trust Company, New York, New York. To the extent the option is exercised by the Underwriters, such option will not exceed 15% of the total number of ADSs sold.
(e) If on the respective Closing Date any Selling Shareholder fails to sell the Firm Shares or Option ADSs ADSs, as the case may be, which such Selling Shareholder has agreed to sell on such date as set forth in Schedule II hereto, the Company agrees that it will sell or arrange for the sale of that number of ADSs to the Underwriters which represents Firm ADSs or the Option ADSs which such Selling Shareholder has failed to so sell, as set forth in Schedule II hereto, or such lesser number as may be requested by the Representative.
Appears in 1 contract
Samples: Underwriting Agreement (eLong, Inc.)
Purchase Sale and Delivery of the Offered Securities. (a) The Firm Securities. Upon the terms herein set forth, the Company agrees to issue and sell to the several Underwriters an aggregate of 20,000,000 Units. On the basis of the representations, warranties and covenants agreements herein contained, and upon the terms but subject to the conditions herein set forth, the Sellers agree Underwriters agree, severally and not jointly, to sell purchase from the Company the respective number of Firm Securities set forth opposite their names on Schedule A. The purchase price per Unit to be paid by the several Underwriters to the Company (the “Purchase Price”) shall be $9.80 per Unit set forth opposite the name of such Underwriter in Schedule A.
(b) The First Closing Date. Delivery of the Firm Securities to be purchased by the Underwriters and payment therefor shall be made at 9:00 a.m. New York City time, on February 2, 2021, or such other time and date not later than 1:30 p.m. New York City time on February 2, 2021 as the Representative shall designate by notice to the Company (the time and date of such closing are called the “First Closing Date”). The Company hereby acknowledges that circumstances under which the Representative may provide notice to postpone the First Closing Date as originally scheduled include, but are not limited to, any determination by the Company or the Representative to recirculate to the public copies of an amended or supplemented IPO Prospectus or a delay as contemplated by the provisions of Section 10. Delivery of the Firm Securities shall be made through the facilities of The Depository Trust Company (“DTC”) unless the Representative shall otherwise instruct.
(c) The Optional Securities; Option Closing Date. In addition, on the basis of the representations, warranties and agreements herein contained, and upon the terms but subject to the conditions herein set forth, the Company hereby grants an option to the several Underwriters to purchase, severally and not jointly, up to an aggregate of 3,000,000 Units from the Company at the purchase price per Unit to be paid by the Underwriters for the Firm Securities. The option granted hereunder may be exercised at any time and from time to time in whole or in part upon notice by the Representative to the Company, which notice may be given at any time within 45 days from the date of this Agreement. Such notice shall set forth (i) the aggregate number of Optional Securities as to which the Underwriters are exercising the option and (ii) the time, date and place at which the Optional Securities will be delivered (which time and date may be simultaneous with, but not earlier than, the First Closing Date; and in the event that such time and date are simultaneous with the First Closing Date, the term “First Closing Date” shall refer to the time and date of delivery of the Firm Securities and such Optional Securities). Any such time and date of delivery, if subsequent to the First Closing Date, is called an “Option Closing Date,” and shall be determined by the Representative and shall not be earlier than two or later than five full business days after delivery of such notice of exercise. If any Optional Securities are to be purchased, each Underwriter agrees, severally and not jointly, to purchase, at a price of US$[·] per ADS, purchase the respective number of Firm ADSs set forth opposite the name of each Underwriter in Schedule I hereof, Optional Securities (subject to such adjustments in accordance with Section 9 hereof. The number of Firm Shares to be purchased by each Underwriter from each Seller shall be eliminate fractional shares as nearly as practicable in the Representative may determine) that bears the same proportion to the total number of Firm Shares being sold by each Seller as the number of Firm Shares being purchased by each Underwriter bears to the total number of Firm Shares Optional Securities to be sold hereunder. The obligations of the Company and of each of the Selling Shareholders shall be several and not joint.
(b) Certificates (if any) in negotiable form for the total number of the Shares underlying ADSs to be sold hereunder by the Selling Shareholders have been placed in custody with the Company as custodian (the “Custodian”) pursuant to the Letter of Transmittal and Custody Agreement (“Custodian Agreement”) executed by each Selling Shareholder for delivery of all such Shares underlying Firm ADSs and any Option ADSs to be sold hereunder by the Selling Shareholders. Each of the Selling Shareholders specifically agrees that the Shares underlying Firm ADSs and any Option ADSs represented by the certificates (if any) held in custody for the Selling Shareholders under the Custodian Agreement are subject to the interests of the Underwriters hereunder, that the arrangements made by the Selling Shareholders for such custody are to that extent irrevocable, and that the obligations of the Selling Shareholders hereunder shall not be terminable by any act or deed of the Selling Shareholders (or by any other person, firm or corporation including the Company, the Custodian or the Underwriters) or by operation of law (including the death of an individual Selling Shareholder or the dissolution of a corporate Selling Shareholder) or by the occurrence of any other event or events, except as set forth in the Custodian Agreement. If any such event should occur prior to the delivery to the Underwriters of the Shares underlying Firm ADSs or the Option ADSs hereunder, certificates (if any) for the Shares underlying Firm ADSs or the Option ADSs, as the case may be, shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such event has not occurred. The Custodian is authorized to receive and acknowledge receipt of the proceeds of sale of the Shares underlying the Firm ADSs or Option ADSs, as the case may be, held by it against delivery of such Shares underlying the Firm ADSs or Option ADSs, as the case may be.
(c) Payment for the Firm ADSs to be sold hereunder is to be made in Federal (same day) funds to an account designated by the Company for the ADSs to be sold by it and to an account designated by the Custodian for the ADSs to be sold by the Selling Shareholders, in each case against delivery of ADRs evidencing the Firm ADSs to the order of the Representative for the several accounts of the Underwriters. Such payment and delivery are to be made through the facilities of The Depository Trust Company, New York, New York at [9:00] a.m., New York time, on [July 5], 2005 or at such other time and date not later than five business days thereafter as you and the Company shall agree upon, such time and date being herein referred to as the “First Closing Date.” (As used herein, “business day” means a day on which the New York Stock Exchange is open for trading and on which banks in New York are open for business and are not permitted by law or executive order to be closed.) The certificates for the Shares represented by the Firm ADSs so delivered shall be in definitive form in such denominations and in such registrations as the Representative requests in writing not later than the second full business day prior to the First Closing Date.
(d) In addition, on the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company and the Selling Shareholders listed on Schedule III hereto hereby grant an option to the several Underwriters to purchase the Option ADSs at the price per ADS as set forth in the first paragraph of this Section 2. The maximum number of Option ADSs to be sold by the Company and the Selling Shareholders is set forth opposite their respective names on Schedule III hereto. The option granted hereby may be exercised in whole or in part by giving written notice (i) at any time before the First Closing Date and (ii) only once thereafter within 30 days after the date of this Agreement, by you, as Representative of the several Underwriters, to the Company, the Attorney-in-Fact (as hereinafter defined), and the Custodian setting forth the number of Option ADSs as to which the several Underwriters are exercising the option and the time and date at which such Option ADSs in appropriate form are to be delivered. If the option granted hereby is exercised in part, the respective number of Option ADSs to be sold by the Company and each of the Selling Shareholders listed on Schedule III hereto shall be determined on a pro rata basis in accordance with the percentages set forth opposite their names on Schedule III hereto, adjusted by you in such manner as to avoid fractional shares. The time and date at which the ADRs evidencing the Option ADSs and the certificates for the Shares represented by the Option ADSs are to be delivered shall be determined by the Representative but shall not be earlier than three nor later than 10 full business days after the exercise of such option, nor in any event prior to the Closing Date (such time and date being herein referred to as the “Option Closing Date”; the First Closing Date and any Option Closing Date being sometimes referred to as a “Closing Date”). If the date of exercise of the option is three or more days before the Closing Date, the notice of exercise shall set the First Closing Date as the Option Closing Date. The number of Option ADSs to be purchased by each Underwriter shall be in the same proportion to the total number of Option ADSs being purchased as the number of Firm ADSs being purchased by Securities set forth on Schedule A opposite the name of such Underwriter bears to the total number of Firm ADSs, adjusted by you in such manner as to avoid fractionsSecurities. The option with respect to the Option ADSs granted hereunder may be exercised only to cover over-allotments in the sale of the Firm ADSs by the Underwriters. You, as Representative of the several Underwriters, may cancel such the option at any time prior to its expiration by giving written notice of such cancellation to the Company and the Attorney-in-Fact. To the extent, if any, that the option is exercised, payment for the Option ADSs shall be made on the Option Closing Date in Federal (same day funds) drawn to the order of “ , as Custodian” for the Option ADSs to be sold by the Selling Shareholders against delivery of ADRs therefor through the facilities of The Depository Trust Company, New York, New York. To the extent the option is exercised by the Underwriters, such option will not exceed 15% of the total number of ADSs sold.
(ed) If Public Offering of the Offered Securities. The Representative hereby advises the Company that the Underwriters intend to offer for sale to the public initially, on the Closing Date any Selling Shareholder fails to sell the Firm Shares or Option ADSs which such Selling Shareholder has agreed to sell on such date as terms set forth in Schedule II heretothe Registration Statement, the Company agrees that it will sell or arrange for Time of Sale Prospectus and the sale IPO Prospectus, their respective portions of that number of ADSs to the Underwriters which represents Firm ADSs or Offered Securities as soon after this Agreement has been executed and the Option ADSs which such Selling Shareholder Registration Statement has failed to so sell, been declared effective as set forth in Schedule II hereto, or such lesser number as may be requested by the Representative, in its sole judgment, has determined is advisable and practicable.
Appears in 1 contract
Purchase Sale and Delivery of the Offered Securities. (a) The Firm Securities. Upon the terms herein set forth, the Company agrees to issue and sell to the several Underwriters an aggregate of 20,000,000 Units. On the basis of the representations, warranties and covenants agreements herein contained, and upon the terms but subject to the conditions herein set forth, the Sellers agree Underwriters agree, severally and not jointly, to sell purchase from the Company the respective number of Firm Securities set forth opposite their names on Schedule A. The purchase price per Unit to be paid by the several Underwriters to the Company (the “Purchase Price”) shall be (i) $9.80 per Unit set forth opposite the name of such Underwriter in Column A-1 of Schedule A, and (ii) $10.00 per Unit set forth opposite the name of such Underwriter in Column A-2 of Schedule A.
(b) The First Closing Date. Delivery of the Firm Securities to be purchased by the Underwriters and payment therefor shall be made at 9:00 a.m. New York City time, on May 8, 2020, or such other time and date not later than 1:30 p.m. New York City time on May 13, 2020 as the Representative shall designate by notice to the Company (the time and date of such closing are called the “First Closing Date”). The Company hereby acknowledges that circumstances under which the Representative may provide notice to postpone the First Closing Date as originally scheduled include, but are not limited to, any determination by the Company or the Representative to recirculate to the public copies of an amended or supplemented IPO Prospectus or a delay as contemplated by the provisions of Section 10. Delivery of the Firm Securities shall be made through the facilities of The Depository Trust Company (“DTC”) unless the Representative shall otherwise instruct.
(c) The Optional Securities; Option Closing Date. In addition, on the basis of the representations, warranties and agreements herein contained, and upon the terms but subject to the conditions herein set forth, the Company hereby grants an option to the several Underwriters to purchase, severally and not jointly, up to an aggregate of 3,000,000 Units from the Company at the purchase price per Unit to be paid by the Underwriters for the Firm Securities. The option granted hereunder may be exercised at any time and from time to time in whole or in part upon notice by the Representative to the Company, which notice may be given at any time within 45 days from the date of this Agreement. Such notice shall set forth (i) the aggregate number of Optional Securities as to which the Underwriters are exercising the option and (ii) the time, date and place at which the Optional Securities will be delivered (which time and date may be simultaneous with, but not earlier than, the First Closing Date; and in the event that such time and date are simultaneous with the First Closing Date, the term “First Closing Date” shall refer to the time and date of delivery of the Firm Securities and such Optional Securities). Any such time and date of delivery, if subsequent to the First Closing Date, is called an “Option Closing Date,” shall be determined by the Representative and shall not be earlier than two or later than five full business days after delivery of such notice of exercise. If any Optional Securities are to be purchased, each Underwriter agrees, severally and not jointly, to purchase, at a price of US$[·] per ADS, purchase the respective number of Firm ADSs set forth opposite the name of each Underwriter in Schedule I hereof, Optional Securities (subject to such adjustments in accordance with Section 9 hereof. The number of Firm Shares to be purchased by each Underwriter from each Seller shall be eliminate fractional shares as nearly as practicable in the Representative may determine) that bears the same proportion to the total number of Firm Shares being sold by each Seller as the number of Firm Shares being purchased by each Underwriter bears to the total number of Firm Shares Optional Securities to be sold hereunder. The obligations of the Company and of each of the Selling Shareholders shall be several and not joint.
(b) Certificates (if any) in negotiable form for the total number of the Shares underlying ADSs to be sold hereunder by the Selling Shareholders have been placed in custody with the Company as custodian (the “Custodian”) pursuant to the Letter of Transmittal and Custody Agreement (“Custodian Agreement”) executed by each Selling Shareholder for delivery of all such Shares underlying Firm ADSs and any Option ADSs to be sold hereunder by the Selling Shareholders. Each of the Selling Shareholders specifically agrees that the Shares underlying Firm ADSs and any Option ADSs represented by the certificates (if any) held in custody for the Selling Shareholders under the Custodian Agreement are subject to the interests of the Underwriters hereunder, that the arrangements made by the Selling Shareholders for such custody are to that extent irrevocable, and that the obligations of the Selling Shareholders hereunder shall not be terminable by any act or deed of the Selling Shareholders (or by any other person, firm or corporation including the Company, the Custodian or the Underwriters) or by operation of law (including the death of an individual Selling Shareholder or the dissolution of a corporate Selling Shareholder) or by the occurrence of any other event or events, except as set forth in the Custodian Agreement. If any such event should occur prior to the delivery to the Underwriters of the Shares underlying Firm ADSs or the Option ADSs hereunder, certificates (if any) for the Shares underlying Firm ADSs or the Option ADSs, as the case may be, shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such event has not occurred. The Custodian is authorized to receive and acknowledge receipt of the proceeds of sale of the Shares underlying the Firm ADSs or Option ADSs, as the case may be, held by it against delivery of such Shares underlying the Firm ADSs or Option ADSs, as the case may be.
(c) Payment for the Firm ADSs to be sold hereunder is to be made in Federal (same day) funds to an account designated by the Company for the ADSs to be sold by it and to an account designated by the Custodian for the ADSs to be sold by the Selling Shareholders, in each case against delivery of ADRs evidencing the Firm ADSs to the order of the Representative for the several accounts of the Underwriters. Such payment and delivery are to be made through the facilities of The Depository Trust Company, New York, New York at [9:00] a.m., New York time, on [July 5], 2005 or at such other time and date not later than five business days thereafter as you and the Company shall agree upon, such time and date being herein referred to as the “First Closing Date.” (As used herein, “business day” means a day on which the New York Stock Exchange is open for trading and on which banks in New York are open for business and are not permitted by law or executive order to be closed.) The certificates for the Shares represented by the Firm ADSs so delivered shall be in definitive form in such denominations and in such registrations as the Representative requests in writing not later than the second full business day prior to the First Closing Date.
(d) In addition, on the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company and the Selling Shareholders listed on Schedule III hereto hereby grant an option to the several Underwriters to purchase the Option ADSs at the price per ADS as set forth in the first paragraph of this Section 2. The maximum number of Option ADSs to be sold by the Company and the Selling Shareholders is set forth opposite their respective names on Schedule III hereto. The option granted hereby may be exercised in whole or in part by giving written notice (i) at any time before the First Closing Date and (ii) only once thereafter within 30 days after the date of this Agreement, by you, as Representative of the several Underwriters, to the Company, the Attorney-in-Fact (as hereinafter defined), and the Custodian setting forth the number of Option ADSs as to which the several Underwriters are exercising the option and the time and date at which such Option ADSs in appropriate form are to be delivered. If the option granted hereby is exercised in part, the respective number of Option ADSs to be sold by the Company and each of the Selling Shareholders listed on Schedule III hereto shall be determined on a pro rata basis in accordance with the percentages set forth opposite their names on Schedule III hereto, adjusted by you in such manner as to avoid fractional shares. The time and date at which the ADRs evidencing the Option ADSs and the certificates for the Shares represented by the Option ADSs are to be delivered shall be determined by the Representative but shall not be earlier than three nor later than 10 full business days after the exercise of such option, nor in any event prior to the Closing Date (such time and date being herein referred to as the “Option Closing Date”; the First Closing Date and any Option Closing Date being sometimes referred to as a “Closing Date”). If the date of exercise of the option is three or more days before the Closing Date, the notice of exercise shall set the First Closing Date as the Option Closing Date. The number of Option ADSs to be purchased by each Underwriter shall be in the same proportion to the total number of Option ADSs being purchased as the number of Firm ADSs being purchased by Securities set forth on Schedule A opposite the name of such Underwriter bears to the total number of Firm ADSs, adjusted by you in such manner as to avoid fractionsSecurities. The option with respect to the Option ADSs granted hereunder may be exercised only to cover over-allotments in the sale of the Firm ADSs by the Underwriters. You, as Representative of the several Underwriters, may cancel such the option at any time prior to its expiration by giving written notice of such cancellation to the Company and the Attorney-in-Fact. To the extent, if any, that the option is exercised, payment for the Option ADSs shall be made on the Option Closing Date in Federal (same day funds) drawn to the order of “ , as Custodian” for the Option ADSs to be sold by the Selling Shareholders against delivery of ADRs therefor through the facilities of The Depository Trust Company, New York, New York. To the extent the option is exercised by the Underwriters, such option will not exceed 15% of the total number of ADSs sold.
(ed) If Public Offering of the Offered Securities. The Representative hereby advises the Company that the Underwriters intend to offer for sale to the public initially, on the Closing Date any Selling Shareholder fails to sell the Firm Shares or Option ADSs which such Selling Shareholder has agreed to sell on such date as terms set forth in Schedule II heretothe Registration Statement, the Company agrees that it will sell or arrange for Time of Sale Prospectus and the sale IPO Prospectus, their respective portions of that number of ADSs to the Underwriters which represents Firm ADSs or Offered Securities as soon after this Agreement has been executed and the Option ADSs which such Selling Shareholder Registration Statement has failed to so sell, been declared effective as set forth in Schedule II hereto, or such lesser number as may be requested by the Representative, in its sole judgment, has determined is advisable and practicable.
Appears in 1 contract
Purchase Sale and Delivery of the Offered Securities. (a) On the basis of the representations, warranties and covenants herein contained, and subject to the conditions herein set forthherein, each of the Forward Sellers agree (and the Company, to the extent of any Standby Firm Securities) agrees, severally and not jointly, to sell to the respective Underwriters the number of Securities set forth in Schedule I-B to the Underwriting Agreement relating to the Offered Securities opposite the name of such Forward Seller under the heading “Number of Borrowed Firm Securities to Be Sold,” and each Underwriter agrees, severally and not jointly, to purchasepurchase from the Forward Sellers (and from the Company, to the extent of any Standby Firm Securities), at a the price of US$[·] per ADSshare set forth in Schedule IV to the Underwriting Agreement relating to the Offered Securities, the respective number of Firm ADSs Securities set forth opposite the name of each such Underwriter in Schedule I hereof, I-A to the Underwriting Agreement relating to the Offered Securities under the heading “Number of Borrowed Firm Securities to Be Purchased,” subject to adjustments in accordance with Section 9 hereof. The number of Firm Shares 11 hereof and subject, in each case, to be purchased by each Underwriter from each Seller shall be as nearly as practicable in adjustments among the same proportion to the total number of Firm Shares being sold by each Seller Underwriters as the number Managers in their sole discretion shall make to eliminate any sales or purchases of Firm Shares being purchased by each Underwriter bears to the total number of Firm Shares to be sold hereunder. The obligations of the Company and of each of the Selling Shareholders shall be several and not jointfractional Securities.
(b) Certificates (if any) If all of the conditions to effectiveness set forth in negotiable form Section 3 of a Forward Agreement are not satisfied on or prior to the Closing Date, the relevant Forward Seller, individually, in its sole judgment, may choose not to borrow and deliver for sale the total number of Securities set forth in Schedule I-B to the Shares underlying ADSs Underwriting Agreement relating to the Offered Securities opposite its name under the heading “Number of Borrowed Firm Securities to Be Sold.” In addition, in the event that, in the commercially reasonable judgment of a Forward Seller, it is unable to borrow and deliver for sale under this Agreement all of the Borrowed Firm Securities set forth in Schedule I-B to the Underwriting Agreement relating to the Offered Securities opposite its name or if, in such Forward Seller’s commercially reasonable judgment, borrowing such number of Borrowed Firm Securities would entail a stock loan cost in excess of a rate equal to 60 basis points per annum, then such Forward Seller shall be sold hereunder by required to deliver for sale only the Selling Shareholders have been placed in custody with the Company as custodian (the “Custodian”) aggregate number of Securities that such Forward Seller is able to so borrow at or below such cost. If, pursuant to the Letter of Transmittal paragraph above, a Forward Seller does not borrow and Custody Agreement (“Custodian Agreement”) executed by each Selling Shareholder deliver for delivery of sale some or all such Shares underlying Firm ADSs and any Option ADSs to be sold hereunder by the Selling Shareholders. Each of the Selling Shareholders specifically agrees that the Shares underlying Borrowed Firm ADSs and any Option ADSs represented by the certificates (if any) held in custody for the Selling Shareholders under the Custodian Agreement are subject to the interests of the Underwriters hereunder, that the arrangements made by the Selling Shareholders for such custody are to that extent irrevocable, and that the obligations of the Selling Shareholders hereunder shall not be terminable by any act or deed of the Selling Shareholders (or by any other person, firm or corporation including the Company, the Custodian or the Underwriters) or by operation of law (including the death of an individual Selling Shareholder or the dissolution of a corporate Selling Shareholder) or by the occurrence of any other event or events, except as Securities set forth in the Custodian Agreement. If any such event should occur prior Schedule I-B to the delivery Underwriting Agreement relating to the Underwriters Offered Securities opposite its name under the heading “Number of Borrowed Firm Securities to Be Sold,” (i) such Forward Seller will use its best efforts to notify the Company no later than 5:00 p.m., New York City time, on the first business day immediately preceding the Closing Date of the Shares underlying number of such Borrowed Firm ADSs or Securities that it will not deliver and (ii) the Option ADSs hereunderCompany agrees to issue and sell to the respective Underwriters pursuant to Section 9(a) hereof a number of Standby Firm Securities equal to the number of Securities that such Forward Seller does not so borrow and deliver for sale, certificates (if any) for the Shares underlying Firm ADSs or the Option ADSs, as the case may be, shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such event has not occurred. The Custodian is authorized to receive and acknowledge receipt each of the proceeds Underwriters, severally and not jointly, agrees to purchase from the Company its pro rata portion of sale a number of Standby Firm Securities equal to the Shares underlying number of Securities that such Forward Seller does not so borrow and deliver for sale, in each case, at the Firm ADSs or Option ADSs, as price per share set forth in Schedule IV to the case may be, held by it against delivery of such Shares underlying Underwriting Agreement relating to the Firm ADSs or Option ADSs, as Offered Securities on the case may beClosing Date.
(c) Payment for the The Company will deliver any Standby Firm ADSs to be Securities issued and sold hereunder is to be made in Federal (same day) funds to an account designated by the Company for to the ADSs Underwriters pursuant to be sold by it Section 9(a) hereof, and the Forward Sellers will deliver, subject to an account designated by paragraph (b) of this Section, the Custodian for the ADSs to be sold by the Selling ShareholdersBorrowed Firm Securities, in each case against delivery of ADRs evidencing the Firm ADSs case, to the order of the Representative Managers for the several accounts of the such Underwriters. Such payment and delivery are to be made , through the facilities of The Depository Trust CompanyCompany (“DTC”) against payment of the purchase price in federal (same day) funds by wire transfer to an account at a bank designated by the Company (in the case of any Standby Firm Securities issued and sold by the Company to the Underwriters pursuant to Section 9(a) hereof) or the Forward Sellers (in the case of any Borrowed Firm Securities) at the office of Xxxxx Xxxx & Xxxxxxxx LLP, New York, New York at [9:00] 10:00 a.m., New York City time, on [July 5], 2005 or at such other time and date not later than five business days thereafter as you and the Company shall agree upon, such time and date being herein referred to as the “First Closing Date.” . For purposes of Rule 15c6-1 under the Exchange Act, the Closing Date (As used herein, “business day” means a day on which the New York Stock Exchange is open for trading and on which banks in New York are open for business and are not permitted by law or executive order to be closed.) The certificates for the Shares represented by the Firm ADSs so delivered shall be in definitive form in such denominations and in such registrations as the Representative requests in writing not if later than the second full business day prior otherwise applicable settlement date) shall be the settlement date for payment of funds and delivery of securities for all the Firm Securities sold pursuant to the First Closing Dateoffering.
(d) In addition, on the basis of the representations representations, warranties and warranties agreements herein contained and subject to upon the terms and conditions herein set forthforth herein, subject to the Company’s right to execute one or more Optional Forward Agreements as described in Section 3(e) below, the Company and the Selling Shareholders listed on Schedule III hereto hereby grant grants an option to the several Underwriters to purchase all or any portion of the Option ADSs Company Optional Securities at the price per ADS as share set forth in Schedule IV to the first paragraph of this Section 2. The maximum number of Option ADSs Underwriting Agreement relating to be sold the Offered Securities less an amount per share equal to any dividends or distributions declared by the Company and payable on the Selling Shareholders is set forth opposite their respective names Firm Securities but not payable on Schedule III heretothe Company Optional Securities (such per share price, for any Company Optional Securities, the “Option Purchase Price” for such Company Optional Securities). The option granted hereby hereunder will expire thirty (30) days after the date of this Agreement and may be exercised in whole or in part by giving written notice (i) at any from time before to time only for the First Closing Date purpose of covering over-allotments that may be made in connection with the offering and (ii) only once thereafter within 30 days after the date of this Agreement, by you, as Representative distribution of the several Underwriters, Firm Securities upon delivery of an “Exercise Notice” by the Managers to the Company, the Attorney-in-Fact (as hereinafter defined), each Forward Seller and the Custodian Company setting forth the number of Option ADSs Optional Securities as to which the several Underwriters are then exercising the option and the time and date at which such Option ADSs in appropriate form are to be delivered. If the option granted hereby is exercised in part, the respective number of Option ADSs to be sold by the Company and each of the Selling Shareholders listed on Schedule III hereto shall be determined on a pro rata basis in accordance with the percentages set forth opposite their names on Schedule III hereto, adjusted by you in such manner as to avoid fractional shares. The time and date at which the ADRs evidencing the Option ADSs and the certificates for the Shares represented by the Option ADSs are to be delivered shall be determined by the Representative but shall not be earlier than three nor later than 10 full business days after the exercise of such option, nor in any event prior to the Closing Date (as defined in the Underwriting Agreement related to the Offered Securities) for such time and date being herein referred to as Optional Securities. Any Borrowed Optional Securities shall be purchased from the “Option Closing Date”; the First Closing Date Forward Sellers, and any Option Closing Date being sometimes referred to as a “Closing Date”). If the date of exercise of the option is three or more days before the Closing Date, the notice of exercise Company Optional Securities and/or Standby Optional Securities shall set the First Closing Date as the Option Closing Date. The number of Option ADSs to be purchased by from the Company, in each case, for the account of each Underwriter shall be in the same proportion to the total number of Option ADSs being purchased as the number of Firm ADSs being purchased by Securities set forth opposite such Underwriter Underwriter’s name in Schedule I-A to the Underwriting Agreement relating to the Offered Securities bears to the total number of Firm ADSsSecurities (subject to adjustments in accordance with Section 11 hereof and, adjusted by you in such manner each case, to adjustments among the Underwriters as the Managers in their sole discretion shall make to avoid fractionseliminate any sales or purchases of fractional Securities). No Optional Securities shall be sold or delivered unless the Firm Securities previously have been, or simultaneously are, sold and delivered. The option with respect right to purchase the Option ADSs granted hereunder Optional Securities or any portion thereof not previously exercised may be exercised only to cover over-allotments in the sale of the Firm ADSs by the Underwriters. You, as Representative of the several Underwriters, may cancel such option surrendered and terminated at any time prior upon notice by the Managers to its expiration by giving written notice of such cancellation to the Company each Forward Seller and the Attorney-in-Fact. To the extent, if any, that the option is exercised, payment for the Option ADSs shall be made on the Option Closing Date in Federal (same day funds) drawn to the order of “ , as Custodian” for the Option ADSs to be sold by the Selling Shareholders against delivery of ADRs therefor through the facilities of The Depository Trust Company, New York, New York. To the extent the option is exercised by the Underwriters, such option will not exceed 15% of the total number of ADSs sold.
(e) If Following the delivery of an Exercise Notice pursuant to Section 3(d) hereof:
(i) The Company may, in its sole judgment, within one business day after the delivery of such Exercise Notice, execute and deliver to (x) the JPM Forward Seller an additional letter agreement between the Company and the JPM Forward Counterparty (the “JPM Optional Forward Agreement”) and (y) the Xxxxx Forward Seller an additional letter agreement between the Company and the Xxxxx Forward Counterparty (the “Xxxxx Optional Forward Agreement” and, together with the JPM Optional Forward Agreement, the “Optional Forward Agreements”), in each case, substantially in the form attached as Exhibit A to the Underwriting Agreement relating to the Offered Securities, relating to the forward sale by the Company, subject to the Company’s right to elect net share or cash settlement of such agreements, of a number of Securities that bears the same ratio to the aggregate number of Optional Securities being purchased by the Underwriters from the Forward Sellers pursuant to the exercise of such option as the number of Securities set forth in Schedule I-B to the Underwriting Agreement relating to the Offered Securities opposite the name of the Forward Seller related to such Forward Purchaser under the heading “Number of Borrowed Optional Securities to Be Sold” bears to the aggregate number of Borrowed Optional Shares being offered pursuant hereto, subject, however, to such adjustments to eliminate any fractional shares as the Managers in their sole discretion shall make. Upon the delivery of any executed Optional Forward Agreement by the Company to a Forward Seller, the related Forward Counterparty shall promptly execute and deliver such Optional Forward Agreement to the Company, and upon such execution and delivery, and on the Closing Date any Selling Shareholder fails basis of the representations and warranties herein contained, but subject to the conditions stated in Section 3(f) hereof, such Forward Seller hereby agrees to sell to the Firm Shares respective Underwriters the number of Securities underlying such Optional Forward Agreement, and each of the Underwriters agrees, severally and not jointly, to purchase from such Forward Seller its pro rata portion of the number of Securities underlying such Optional Forward Agreement, in each case, at a price per share equal to the Option Purchase Price.
(ii) If the Company does not timely execute and deliver one or Option ADSs which such Selling Shareholder has agreed to sell on such date both Optional Forward Agreements as set forth in Schedule II heretothe immediately preceding paragraph, then, on the basis of the representations and warranties contained in this Agreement, and subject to its terms and conditions, the Company hereby agrees that it will to issue and sell or arrange for to the sale of that respective Underwriters a number of ADSs Company Optional Securities equal to the Underwriters which represents Firm ADSs or number of Optional Securities underlying the Optional Forward Agreement(s) that were not so executed and delivered at the applicable Option Purchase Price, and each Underwriter agrees, severally and not jointly, to purchase from the Company its pro rata portion of such Company Optional Securities, in each case, at the Option ADSs which Purchase Price for such Selling Shareholder Company Optional Securities.
(f) (i) If, pursuant to Section 3(e)(i) hereof, a Forward Counterparty and the Company enter into an Optional Forward Agreement, but as of the applicable Option Closing Date, (1) the representations and warranties of the Company contained in Section 1 hereto are not true and correct, (2) the Company has failed not performed any obligation under this Agreement as of such Option Closing Date that is required to so sellbe performed on or before such Option Closing Date under this Agreement as of such Option Closing Date, as the case may be, or (3) all of the conditions to the effectiveness set forth in Schedule II heretoSection 3 of such Optional Forward Agreement have not been satisfied (such three sets of conditions, or collectively, the “Option Conditions”), the relevant Forward Seller, individually, in its sole judgment, may choose not to borrow and deliver for sale the Securities underlying such lesser number as may be requested by the RepresentativeOptional Forward Agreement.
Appears in 1 contract
