Conditions of Underwriters’ Obligations. The obligations of the Underwriters hereunder, as to the Shares to be delivered at each Time of Delivery, shall be subject, in their discretion, to the condition that all representations and warranties and other statements of the Company and of the Selling Stockholders herein are, at and as of such Time of Delivery, true and correct, the condition that the Company and the Selling Stockholders shall have performed all of its and their obligations hereunder theretofore to be performed, and the following additional conditions: (a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(a) hereof; all material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433 under the Act; if the Company has elected to rely upon Rule 462(b) under the Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m., Washington, D.C. time, on the date of this Agreement; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction; (b) Xxxxx Xxxxx L.L.P., counsel for the Underwriters, shall have furnished to you such written opinion or opinions, dated such Time of Delivery, in form and substance reasonably satisfactory to you, with respect to such matters as you may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters; (c) Xxxxxx & Xxxxxx L.L.P., counsel for the Company, shall have furnished to you their written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex II. (d) Xxxxxxxx X. Xxxxx, General Counsel and Corporate Secretary of the Company, shall have furnished to you his written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex III. (e) Xxxx Xxxxxxxxxx & Xxxxxxxxx LLP, special Indiana counsel for the Company, shall have furnished to you their written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex IV. (f) Xxxxxx LLP, counsel for each of the Selling Stockholders, as indicated in Schedule IIA hereto, shall have furnished to you their written opinion with respect to each of the Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex V. (g) Such local counsel as you shall reasonably require shall have furnished to you their written opinion with respect to each of the foreign Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex VI. (h) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, UHY, LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you; (i) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, Flackman Xxxxxxx & Xxxxxx, P.A. shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you; (i) Neither the Company nor the Subsidiaries shall have sustained since the date of the latest audited financial statements included in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, other than as set forth or contemplated in the Pricing Prospectus and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or the Subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and the Subsidiaries, other than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Pricing Prospectus; (k) On or after the Applicable Time, there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the NYSE; (ii) a suspension or material limitation in trading in the Company’s securities on the NYSE; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Texas State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus; (l) The Shares to be sold at such Time of Delivery shall have been duly admitted for trading and quotation on the NYSE; (m) The Company shall have obtained and delivered to the Underwriters executed copies of a lock-up agreement from each of its directors and executive officers, the Selling Stockholders and each other stockholder identified on Schedule IV hereto, in the form attached as Annex I hereto; (n) The Company shall have complied with the provisions of Section 5(c) hereof with respect to the furnishing of prospectuses on the New York Business Day next succeeding the date of this Agreement; and (o) The Company and the Selling Stockholders shall have furnished or caused to be furnished to you at such Time of Delivery certificates of officers of the Company and of the Selling Stockholders, respectively, satisfactory to you as to the accuracy of the representations and warranties of the Company and the Selling Stockholders, respectively, herein at and as of such Time of Delivery, as to the performance by the Company and the Selling Stockholders of all of their respective obligations hereunder to be performed at or prior to such Time of Delivery, and the Company shall have furnished or caused to be furnished certificates as to the matters set forth in subsections (a) of this Section and as to such other matters as you may reasonably request. (p) The Company shall have furnished or caused to be furnished to you at such Time of Delivery a certificate of the Executive Vice President, Chief Financial Officer and Treasurer to the effect that: (i) He is familiar with the internal accounting records of the Company. (ii) He has reviewed the “Recent Developments” section contained in both the Preliminary Prospectus and the Prospectus. The information presented in such Recent Developments section (A) has been prepared in good faith and based upon assumptions that he believes are reasonable and consistent with the operations of the Company and (B) is a fair estimate in all material respects of the Company’s total revenues and net income for the three months ended June 30, 2011 and has been derived from the Company’s accounting and/or financial records.
Appears in 2 contracts
Sources: Underwriting Agreement (C&J Energy Services, Inc.), Underwriting Agreement (C&J Energy Services, Inc.)
Conditions of Underwriters’ Obligations. The obligations of the Underwriters hereunderto purchase and pay for the Firm Shares and the Additional Shares, as to the Shares to be delivered at each Time of Deliveryprovided herein, shall be subject, in their discretion, subject to the condition that all accuracy of the representations and warranties and other statements of the Company and of the Selling Stockholders herein are, at and as of such Time of Delivery, true and correct, the condition that the Company and the Selling Stockholders herein contained, as of the date hereof and as of the Closing Date (for purposes of this Section 7 "Closing Date" shall have performed all refer to the Closing Date for the Firm Shares and any Additional Closing Date, if different, for the Additional Shares), to the absence from any certificates, opinions, written statements or letters furnished to you or to Underwriters' Counsel pursuant to this Section 7 of its and any misstatement or omission, to the performance by the Company or the Selling Stockholder of their respective obligations hereunder theretofore to be performedhereunder, and to each of the following additional conditions:
(a) The Registration Statement shall have become effective and all necessary regulatory or stock exchange approvals shall have been received not later than 5:30 P.M., New York time, on the date of this Agreement, or at such later time and date as shall have been consented to in writing by the Lead Manager; if the Company shall have elected to rely upon Rule 430A or Rule 434 under the Securities Act, the Prospectus shall have been filed with the Commission in a timely fashion in accordance with Section 5(a) hereof and a form of the Prospectus containing information relating to the description of the Shares and the method of distribution and similar matters shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by period; and, at or prior to the rules and regulations under the Act and in accordance with Section 5(a) hereof; all material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433 under the Act; if the Company has elected to rely upon Rule 462(b) under the Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m., Washington, D.C. time, on the date of this Agreement; Closing Date no stop order suspending the effectiveness of the Registration Statement or any part post-effective amendment thereof shall have been issued and no proceeding for that purpose proceedings therefor shall have been initiated or threatened by the Commission; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction;.
(b) Xxxxx Xxxxx L.L.P., counsel for At the Underwriters, shall have furnished to Closing Date you such written opinion or opinions, dated such Time of Delivery, in form and substance reasonably satisfactory to you, with respect to such matters as you may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;
(c) the written opinion of Xxxxxx & Xxxxxx L.L.P.Xxxxxxx PLLC, counsel for the Company, dated the Closing Date addressed to the Underwriters in the form attached hereto as Annex I.
(c) At the Closing Date you shall have furnished to you their received the written opinionopinions of McGuireWoods LLP, counsel for the Selling Stockholders, dated such Time of Delivery, in form and substance satisfactory to you, the Closing Date addressed to the effect set forth on Underwriters in the forms attached hereto as Annex II.
(d) Xxxxxxxx X. XxxxxAt the Closing Date you shall have received the written opinion of Xxxxxx Xxxx, General Counsel and Corporate Secretary of the Company, shall have furnished to you his written opinionon behalf of the Company, dated such Time of Delivery, in form and substance satisfactory to you, the Closing Date addressed to the effect set forth on Underwriters in the form attached hereto as Annex III.
(e) Xxxx Xxxxxxxxxx & Xxxxxxxxx LLPAll proceedings taken in connection with the sale of the Firm Shares and the Additional Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Lead Manager and to Underwriters' Counsel, special Indiana counsel for and the CompanyUnderwriters shall have received from Underwriters' Counsel a favorable written opinion, dated as of the Closing Date, with respect to the issuance and sale of the Shares, the Registration Statement and the Prospectus and such other related matters as the Lead Manager may reasonably require, and the Company shall have furnished to you their written opinion, dated Underwriters' Counsel such Time documents as they may reasonably request for the purpose of Delivery, enabling them to pass upon such matters.
(f) The Company shall have received a duly executed lock-up agreement from each person listed on Schedule III hereto substantially in the form and substance satisfactory to you, to the effect set forth on attached hereto as Annex IV.
(fg) Xxxxxx LLP, counsel for each At the Closing Date you shall have received a certificate of the Selling Stockholders, as indicated in Schedule IIA hereto, shall have furnished to you their written opinion with respect to each Chief Executive Officer and Chief Financial Officer of the Selling StockholdersCompany, dated the First Time of Delivery, in form and substance satisfactory to you, Closing Date to the effect that (i) the condition set forth in Annex V.
subsection (ga) Such local counsel of this Section 7 has been satisfied, (ii) as you shall reasonably require shall have furnished to you their written opinion with respect to each of the foreign Selling Stockholdersdate hereof and as of the Closing Date, dated the First Time representations and warranties of Delivery, in form and substance satisfactory to you, to the effect Company set forth in Annex VI.
Section 1 hereof are accurate, (hiii) On the date as of the Prospectus at a time prior to the execution of this AgreementClosing Date all agreements, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement conditions and also at each Time of Delivery, UHY, LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) On the date obligations of the Prospectus at a time Company to be performed or complied with hereunder on or prior to the execution of this Agreementthereto have been duly performed or complied with, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, Flackman Xxxxxxx & Xxxxxx, P.A. shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(iiv) Neither the Company nor and the Subsidiaries shall have not sustained since the date of the latest audited financial statements included in the Pricing Prospectus any loss or interference with its business their respective businesses or properties from fire, explosionflood, flood hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or court any legal or governmental actionproceeding which would have a Material Adverse Effect, (v) no stop order suspending the effectiveness of the Registration Statement or decreeany post-effective amendment thereof has been issued and no proceedings therefor have been initiated or to the best knowledge of the Company, other than threatened by the Commission, (vi) there are no pro forma or as set forth or contemplated adjusted financial statements that are required to be included in the Pricing Registration Statement and the Prospectus pursuant to the Rules and Regulations that have not been included as required, and (iivii) since subsequent to the respective dates as of which information is given in the Pricing Registration Statement and the Prospectus there has not been any material adverse change or any development involving a prospective Material Adverse Change, whether or not arising from transactions in the ordinary course of business, in or affecting (x) the business, condition (financial or otherwise), results of operations, stockholders' equity, properties or prospects of the Company and the Subsidiaries, individually or taken as a whole, (y) the long-term debt or capital stock of the Company or any of its Subsidiaries, or (z) the Offering or consummation of any of the other transactions contemplated by this Agreement, the Registration Statement and the Prospectus.
(h) At the time this Agreement is executed and at the Closing Date, you shall have received a comfort letter, from Ernst & Young LLP, independent registered public accounting firm for the Company, dated, respectively, as of the date of this Agreement and as of the Closing Date addressed to the Underwriters and in form and substance reasonably satisfactory to the Underwriters and Underwriters' Counsel.
(i) At the time this Agreement is executed and at the Closing Date, you shall have received a letter, from Ernst & Young LLP, dated, respectively, as of the date of this Agreement and as of the Closing Date addressed to the Underwriters and in form and substance reasonably satisfactory to the Underwriters and Underwriters' Counsel, stating that nothing caused them to believe that the audited pro forma information of the Company included in the Registration Statement does not comply as to form with the applicable accounting requirements of Rule 11-02 of Regulation S-X promulgated under the Securities Act or that the pro forma adjustments have not been applied properly to the historical amounts in the compilation of such statements.
(j) You shall have received from Ernst & Young LLP, a letter stating that the Company's system of internal accounting controls taken as a whole is sufficient to meet the broad objectives of internal accounting control insofar as those objectives pertain to the prevention or detection of errors or irregularities in amounts that would be material in relation to the financial statements of the Company and its subsidiaries.
(k) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been any change in the capital stock or long-term debt of the Company or the Subsidiaries any Subsidiary or any change, change or any development involving a prospective change, whether or not arising from transactions in the ordinary course of business, in the business, condition (financial or affecting the general affairsotherwise), management, financial positionresults of operations, stockholders’ equity ' equity, properties or results of operations prospects of the Company and the Subsidiaries, individually or taken as a whole, including but not limited to the occurrence of any fire, flood, storm, explosion, accident or other than as set forth calamity at any of the properties owned or contemplated in leased by the Pricing ProspectusCompany or any of its Subsidiaries, the effect of which, in any such case described in clause (i) or (ii)above, is is, in the judgment of the Representatives Lead Manager, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery Offering on the terms and in the manner contemplated in the Pricing Prospectus;
Prospectus (k) On or after the Applicable Time, there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the NYSE; (ii) a suspension or material limitation in trading in the Company’s securities on the NYSE; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Texas State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence exclusive of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus;supplement).
(l) The Shares to be sold at such Time of Delivery No downgrading shall have been duly admitted occurred in the Company's corporate credit rating or the rating accorded the Company's debt securities or preferred stock by any "nationally recognized statistical rating organization" (as defined for trading purposes of Rule 436(g) under the Securities Act) and quotation on no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the NYSE;Company's debt securities, it being understood that, as of the date of this Agreement and the Closing Date, that the Company has no such rating.
(m) The Company At the Closing Date, the Shares shall have obtained and delivered to been approved for quotation on the Underwriters executed copies of a lock-up agreement from each of its directors and executive officers, the Selling Stockholders and each other stockholder identified on Schedule IV hereto, in the form attached as Annex I hereto;Nasdaq.
(n) The Company At the Closing Date, the NASD shall have complied with the provisions of Section 5(c) hereof confirmed that it has not raised any objection with respect to the furnishing fairness and reasonableness of prospectuses on the New York Business Day next succeeding the date of this Agreement; andunderwriting terms and arrangements.
(o) The Company and At the Selling Stockholders Closing Date, you shall have furnished received a certificate of each Selling Stockholder or caused to be furnished to you at such Time of Delivery certificates of officers of an authorized representative thereof, dated the Company and of the Selling StockholdersClosing Date, respectively, satisfactory to you as to the accuracy of effect that the representations and warranties of the Company and the Selling Stockholders, respectively, herein at and as of such Time of Delivery, as to the performance by the Company and the Selling Stockholders of set forth in Section 2 hereof are accurate and that such Selling Shareholder has complied with all of their respective obligations hereunder agreements and satisfied all conditions on his or its part to be performed or satisfied hereunder at or prior to such Time of Delivery, and the Company shall have furnished or caused to be furnished certificates as to the matters set forth in subsections (a) of this Section and as to such other matters as you may reasonably requestClosing Date.
(p) The No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the Closing Date, prevent the issuance or sale of the Shares; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Shares.
(q) On or prior to the Closing Date, the Company shall have received a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof) from each Selling Stockholder.
(r) At the time this Agreement is executed and at the Closing Date, you shall have received from the Chief Financial Officer of the Company a certificate in form and substance reasonably satisfactory to the Lead Manager and Underwriters' Counsel as to the accuracies of certain numbers contained in the Registration Statement.
(s) The Company and each Selling Stockholder shall have furnished the Underwriters and Underwriters' Counsel with such other certificates, opinions or caused to be other documents as they may have reasonably requested. If any of the conditions specified in this Section 7 shall not have been fulfilled when and as required by this Agreement, or if any of the certificates, opinions, written statements or letters furnished to you at such Time of Delivery a certificate or to Underwriters' Counsel pursuant to this Section 7 shall not be reasonably satisfactory in form and substance to the Lead Manager and to Underwriters' Counsel, all obligations of the Executive Vice PresidentUnderwriters hereunder may be cancelled by the Lead Manager at, Chief Financial Officer or at any time prior to, the Closing Date and Treasurer the obligations of the Underwriters to purchase the Additional Shares may be cancelled by the Lead Manager at, or at any time prior to, the Additional Closing Date. Notice of such cancellation shall be given to the effect that:
(i) He is familiar with the internal accounting records of the CompanyCompany in writing, or by telephone. Any such telephone notice shall be confirmed promptly thereafter in writing.
(ii) He has reviewed the “Recent Developments” section contained in both the Preliminary Prospectus and the Prospectus. The information presented in such Recent Developments section (A) has been prepared in good faith and based upon assumptions that he believes are reasonable and consistent with the operations of the Company and (B) is a fair estimate in all material respects of the Company’s total revenues and net income for the three months ended June 30, 2011 and has been derived from the Company’s accounting and/or financial records.
Appears in 2 contracts
Sources: Underwriting Agreement (Asset Acceptance Capital Corp), Underwriting Agreement (Asset Acceptance Capital Corp)
Conditions of Underwriters’ Obligations. The obligations of the several Underwriters hereunder, as to purchase and pay for the Designated Securities they have severally agreed to purchase under this Agreement on the Closing Date are subject (i) to the Shares to be delivered at each Time accuracy in all material respects of Delivery, shall be subject, in their discretion, to the condition that all representations and warranties of the Company and other the Guarantor contained in this Agreement as of the date of this Agreement and the Closing Date, (ii) to the accuracy in all material respects of the statements of the Company and of the Selling Stockholders herein areGuarantor made in any certificates pursuant to the provisions hereof delivered prior to or concurrently with such purchase, at and as of such Time of Delivery, true and correct, (iii) to the condition that performance by the Company and the Selling Stockholders shall have performed all Guarantor of its and their obligations hereunder theretofore to be performedunder this Agreement, and to the following additional further conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in a timely fashion in accordance with Section 5(a) hereof; all material required to be filed by filings (including, without limitation, the Company final term sheet prepared pursuant to Section 5(a) hereof) required by Rule 433(d424(b) under or Rule 433 of the Act Rules and Regulations shall have been filed with made, and no such filings will have been made without the Commission within consent of the applicable time period prescribed for such filing by Rule 433 under the Act; if the Company has elected to rely upon Rule 462(b) under the Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m., Washington, D.C. time, on the date of this AgreementRepresentative(s); no stop order suspending the effectiveness of the Registration Statement or any part thereof amendment or supplement thereto, preventing or suspending the use of the Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus, or suspending the qualification of the Designated Securities for offering or sale in any jurisdiction shall have been issued and issued; no proceeding proceedings for that purpose the issuance of any such order shall have been initiated or threatened by the Commissionthreatened; no stop order suspending or preventing the use notice of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part objection of the Commission shall have been complied with to your reasonable satisfaction;
(b) Xxxxx Xxxxx L.L.P., counsel for use the Underwriters, shall have furnished to you such written opinion Registration Statement or opinions, dated such Time of Delivery, in form and substance reasonably satisfactory to you, with respect to such matters as you may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;
(c) Xxxxxx & Xxxxxx L.L.P., counsel for the Company, shall have furnished to you their written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex II.
(d) Xxxxxxxx X. Xxxxx, General Counsel and Corporate Secretary of the Company, shall have furnished to you his written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex III.
(e) Xxxx Xxxxxxxxxx & Xxxxxxxxx LLP, special Indiana counsel for the Company, shall have furnished to you their written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex IV.
(f) Xxxxxx LLP, counsel for each of the Selling Stockholders, as indicated in Schedule IIA hereto, shall have furnished to you their written opinion with respect to each of the Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex V.
(g) Such local counsel as you shall reasonably require shall have furnished to you their written opinion with respect to each of the foreign Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex VI.
(h) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment thereto pursuant to Rule 401(g)(2) of the Rules and Regulations shall have been received by the Company; and any request of the Commission for additional information (to be included in the Registration Statement filed or the Prospectus or otherwise) shall have been disclosed to the Underwriters and complied with the Underwriters’ satisfaction.
(b) No Underwriter shall have been advised by the Company or shall have discovered and disclosed to the Company that the Registration Statement, the Disclosure Package or the Prospectus or any amendment or supplement thereto, contains an untrue statement of fact which in the opinion of the Underwriters, or in the opinion of counsel to the Underwriters, is material, or omits to state a fact which, in the opinion of the Underwriters, or in the opinion of counsel to the Underwriters, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(c) At the Closing Date, if from the Applicable Time to the Closing Date there is no Downgrade Event or Review Event (each as defined below), the Underwriters shall have received a certificate, dated as of the Closing Date, of the Guarantor signed by the deputy chief financial officer of the Guarantor, certifying, with respect to the Guarantor, that at the Closing Date and subsequent to the date of this Agreement and also at each Time of Delivery, UHY, LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, Flackman Xxxxxxx & Xxxxxx, P.A. shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) Neither the Company nor the Subsidiaries shall have sustained since the date of the latest audited financial statements included in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, other than as set forth or contemplated in the Pricing Prospectus and (ii) since the respective dates as of which information is given in the Pricing Prospectus Disclosure Package, (i) no stop order suspending the effectiveness of the Registration Statement shall be in effect, and no proceedings for such purpose shall be pending before or threatened by the Commission (ii) there shall not have been any material adverse change in the capital stock financial condition, earnings or long-term debt prospects of the Company or the Subsidiaries or any changeGuarantor and its subsidiaries, or any development involving a prospective changeconsidered as one enterprise, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and the Subsidiaries, other than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (iiii) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Pricing Prospectus;
(k) On or after since the Applicable Time, there shall not have occurred been, with respect to the rating of any debt securities or preferred stock of the following: Guarantor or debt securities or preferred stock unconditionally guaranteed by the Guarantor, a downgrade by Xxxxx’x Investor Services, Inc. (i“Xxxxx’x”), Fitch Ratings Ltd. (“Fitch”); or Standard and Poor’s Corporation (“S&P”) (any such event, a suspension “Downgrade Event”), or material limitation in trading in any public announcement that either Moody’s, Fitch, or S&P has under surveillance or review its rating of any debt securities generally on or preferred stock of the NYSE; Guarantor or debt securities or preferred stock unconditionally guaranteed by the Guarantor (iiother than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating, and any announcement made prior to the Applicable Time) (any such event, a suspension or material limitation in trading in the Company’s securities on the NYSE; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Texas State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; “Review Event”), (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment each of the Representatives makes it impracticable or inadvisable to proceed with Company and the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus;
(l) The Shares to be sold at such Time of Delivery shall have been duly admitted for trading and quotation on the NYSE;
(m) The Company shall have obtained and delivered to the Underwriters executed copies of a lock-up agreement from each of its directors and executive officers, the Selling Stockholders and each other stockholder identified on Schedule IV hereto, in the form attached as Annex I hereto;
(n) The Company Guarantor shall have complied with the provisions of Section 5(c) hereof with respect all agreements and satisfied all conditions on its respective part to be performed or satisfied hereunder at or prior to the furnishing of prospectuses on the New York Business Day next succeeding the date of this Agreement; and
Closing Date, and (ov) The Company and the Selling Stockholders shall have furnished or caused to be furnished to you at such Time of Delivery certificates of officers of the Company and of the Selling Stockholders, respectively, satisfactory to you as to the accuracy of the representations and warranties of the Company and the Selling StockholdersGuarantor set forth in Section 1 above and in the applicable Underwriting Agreement, respectivelyif any, herein are accurate in all material respects as though expressly made at and as of such the Closing Date. If, however, from the Applicable Time of Delivery, as to the performance Closing Date, there is a Downgrade Event or a Review Event, the Underwriters shall have received at the Closing Date a certificate, dated as of the Closing Date, of the Guarantor signed by the Company and deputy chief financial officer of the Selling Stockholders of all of their respective obligations hereunder Guarantor, certifying, with respect to be performed at or prior to such Time of Deliverythe Guarantor, and the Company shall have furnished or caused to be furnished certificates as to solely the matters set forth in subsections Section 6(c)(i), (aii), (iv) and (v), unless the Representatives, on behalf of the Underwriters, shall have notified in writing to the Company and the Guarantor, by the earlier of 48 hours from the occurrence of the Downgrade Event or Review Event, as the case may be, or the Closing Date, that in their good faith and judgment such Downgrade Event or Review Event makes it impracticable or inadvisable to consummate the offering of the Designated Securities. In addition, at the Closing Date, the Underwriters shall have received a certificate dated as of the Closing Date of the Company signed by a director of the Company certifying, with respect to the Company, the matters set forth in this Section 6(c)(iv) and as to such other matters as you may reasonably request(v).
(pd) The Company At the Closing Date, the Underwriters shall have furnished received a signed opinion or caused opinions of counsel reasonably satisfactory to be furnished to you at such Time of Delivery a certificate the Underwriters, dated as of the Executive Vice President, Chief Financial Officer and Treasurer to the effect that:
(i) He is familiar with the internal accounting records of the CompanyClosing Date.
(iie) He has reviewed At the Applicable Time, the Underwriters shall have received letters of accountants, ordinarily referred to as “Recent Developments” section contained comfort letters”, confirming information as specified in both the Preliminary applicable Underwriting Agreement and dated the date on which the Term Sheets and/or the Prospectus and the Prospectus. The information presented in such Recent Developments section (A) has been prepared in good faith and based upon assumptions that he believes are reasonable and consistent with the operations dated, as applicable from those accountants of the Company and Guarantor or any of its subsidiaries as specified in the applicable Underwriting Agreement.
(Bf) is a fair estimate At the Closing Date, the Underwriters shall have received letters of accountants dated as of the Closing Date, confirming information as specified in the comfort letters delivered pursuant to Section 6(e) above, from those accountants of the Guarantor or any of its subsidiaries as specified in the applicable Underwriting Agreement. If any of the conditions specified in this Section 6 or in Section 2 of the applicable Underwriting Agreement shall not have been fulfilled in all material respects when and as required by this Agreement to be fulfilled, this Agreement may be terminated by the Underwriters upon notice to the Company and the Guarantor at any time at or prior to the Closing Date, and such termination shall be without liability of any party to any other party except as provided in Section 7 herein. Notwithstanding any such termination, the Company’s total revenues provisions of Sections 8, 9, 10, 14 and net income for the three months ended June 30, 2011 and has been derived from the Company’s accounting and/or financial records16 herein shall remain in effect.
Appears in 2 contracts
Sources: Underwriting Agreement (Telefonica S A), Underwriting Agreement (Telefonica S A)
Conditions of Underwriters’ Obligations. The obligations of the Underwriters hereunder, as to purchase the Shares under this Agreement shall be subject to the Shares to be delivered at each Time accuracy of Delivery, shall be subject, in their discretion, to the condition that all representations and warranties and other statements of the Company and Company, as of the Selling Stockholders herein are, at date hereof and as of such Time each of Deliverythe Closing Date and the Additional Closing Date, true and correctif any; to the absence from any certificates, opinions, written statements or letters furnished to the condition that Underwriters or to Jenkens & Gxxxxxxxx, a Professional Corporation ("Underwriters’ Counsel"), pursuant to this Section of any misstatement or omission; to the performance by the Company and the Selling Stockholders shall have performed all of its obligations under this Agreement; and their obligations hereunder theretofore to be performed, and the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(a) hereof; all material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433 under the Act; if the Company has elected to rely upon Rule 462(b) under the Act, the Rule 462(b) Registration Statement shall have become been declared effective by 10:00 p.m., Washington, D.C. time, on the date of this Agreement; , and, at each of the Closing Date and the Additional Closing Date, no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding proceedings for that such purpose shall have been initiated instituted or threatened shall be pending or contemplated by the Commission; no stop order suspending or preventing the use of the Prospectus or commission and any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information request on the part of the Commission for additional information shall have been complied with to your the reasonable satisfaction;satisfaction of the Underwriters.
(b) Xxxxx Xxxxx L.L.P.By the Closing Date, counsel for the Underwriters, shall have furnished to you such written opinion or opinions, dated such Time of Delivery, in form and substance reasonably satisfactory to you, with respect to such matters as you may reasonably request, and such counsel Representatives shall have received such papers and information clearance from the NASD as they may reasonably request to enable them the amount of compensation allowable or payable to pass upon such matters;the Underwriters as described in the Registration Statement.
(c) Xxxxxx On the Closing Date, the Representatives shall have received the favorable opinion of Holme, Rxxxxxx & Xxxxxx L.L.P.Oxxx LLP, counsel for to the Company, shall have furnished dated the Closing Date, addressed to you their written opinion, dated such Time of Delivery, the Representatives and in form and substance satisfactory to you, to the effect set forth on Annex IIUnderwriters.
(d) Xxxxxxxx X. XxxxxAt the time this Agreement is executed, General Counsel and Corporate Secretary at each of the CompanyClosing Date and the Additional Closing Date, if any, you shall have furnished received a letter, addressed to you his written opinion, dated such Time of Delivery, the Representatives and in form and substance satisfactory to you, in all respects to the effect set forth on Annex III.
(e) Xxxx Xxxxxxxxxx & Xxxxxxxxx LLPRepresentatives from KPMG LLP dated, special Indiana counsel for the Company, shall have furnished to you their written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex IV.
(f) Xxxxxx LLP, counsel for each of the Selling Stockholdersrespectively, as indicated in Schedule IIA hereto, shall have furnished to you their written opinion with respect to each of the Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex V.
(g) Such local counsel as you shall reasonably require shall have furnished to you their written opinion with respect to each of the foreign Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex VI.
(h) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at as of the Closing Date and the Additional Closing Date, if any, containing statements and information of the type customarily included in accountants’ "comfort letters" to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement and the Final Prospectus.
(e) At each Time of Deliverythe Closing Date and the Additional Closing Date, UHYif any, LLP the Representatives shall have furnished to you received a letter or letterscertificate of the Company signed by the President and Chief Financial Officer of the Company, dated the respective dates of delivery thereofClosing Date or the Additional Closing Date, in form and substance satisfactory as the case may be, respectively, to you;
the effect that (i) On the date Company has performed all covenants and agreements and complied with all conditions required by this Agreement to be performed or complied with by the Company prior to and as of the Prospectus at a time Closing Date, or the Additional Closing Date, as the case may be; (ii) as of the Closing Date and the Additional Closing Date, as the case may be, the obligations of the Company to be performed on or prior to such Closing Date have been duly performed; (iii) as of Closing Date and the execution Additional Closing Date, as the case may be, the representations and warranties of this Agreementthe Company set forth in Section 1 hereof are true and correct; (iv) they have carefully examined the Registration Statement and the Prospectus and, in their opinion (A) when the Registration Statement was declared effective, and at 9:30 a.m.all times subsequent thereto and as of the Closing Date or the Additional Closing Date, New York City timeas the case may be, on the Registration Statement and Prospectus did not include any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) since the effective date of any post-effective the Registration Statement, no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement filed or the Prospectus; (v) subsequent to the date of this Agreement and also at each Time of Delivery, Flackman Xxxxxxx & Xxxxxx, P.A. shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) Neither the Company nor the Subsidiaries shall have sustained since the date of the latest audited financial statements included in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, other than as set forth or contemplated in the Pricing Prospectus and (ii) since the respective dates as of which information is given in the Pricing Prospectus Registration Statement and the Prospectus, there shall has not have been any change in the capital stock or long-term debt of the Company or the Subsidiaries or any material adverse change, or any development involving a prospective material adverse change, in the business, prospects, properties, operations, condition (financial or affecting the general affairsotherwise), management, financial position, stockholders’ equity affairs or results of operations management of the Company and the SubsidiariesCompany, other than except in each case as set forth described in or contemplated in by the Pricing Prospectus; and (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act. In addition, the effect of which, in any Representatives will have received such case described in clause (i) or (ii), is in the judgment of the Representatives so material other and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Pricing Prospectus;
(k) On or after the Applicable Time, there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the NYSE; (ii) a suspension or material limitation in trading in the Company’s securities on the NYSE; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Texas State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus;
(l) The Shares to be sold at such Time of Delivery shall have been duly admitted for trading and quotation on the NYSE;
(m) The Company shall have obtained and delivered to the Underwriters executed copies of a lock-up agreement from each of its directors and executive officers, the Selling Stockholders and each other stockholder identified on Schedule IV hereto, in the form attached as Annex I hereto;
(n) The Company shall have complied with the provisions of Section 5(c) hereof with respect to the furnishing of prospectuses on the New York Business Day next succeeding the date of this Agreement; and
(o) The Company and the Selling Stockholders shall have furnished or caused to be furnished to you at such Time of Delivery further certificates of officers of the Company and of as the Selling Stockholders, respectively, satisfactory to you as to the accuracy of the representations and warranties of the Company and the Selling Stockholders, respectively, herein at and as of such Time of Delivery, as to the performance by the Company and the Selling Stockholders of all of their respective obligations hereunder to be performed at or prior to such Time of Delivery, and the Company shall have furnished or caused to be furnished certificates as to the matters set forth in subsections (a) of this Section and as to such other matters as you Representatives may reasonably request.
(pf) The Company At each of the Closing Date and the Additional Closing Date, if any, the Representatives shall have furnished or caused to be furnished to you at such Time of Delivery received a certificate of the Executive Vice PresidentCompany signed by the Secretary of the Company, Chief Financial Officer and Treasurer to dated the effect that:
Closing Date or the Additional Closing Date, as the case may be, respectively, certifying (i) He is familiar with that the internal accounting records By-Laws and Articles of Incorporation of the Company are true and complete, have not been modified and are in full force and effect, (ii) that the resolutions relating to the public offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) all correspondence between the Company or its counsel and the Commission, and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(iig) He has reviewed Prior to and on each of the “Recent Developments” section contained in both the Preliminary Prospectus Closing Date and the Prospectus. The information presented Additional Closing Date, if any, (i) there shall have been no material adverse change or development involving a prospective material adverse change in such Recent Developments section (A) has been prepared in good faith and based upon assumptions that he believes are reasonable and consistent with the operations condition or prospects or the business activities, financial or otherwise, of the Company from the latest dates as of which such condition is set forth in the Registration Statement and Prospectus, (ii) no action suit or proceeding, at law or in equity, shall have been pending or threatened against the Company before or by any court or federal or state commission, board or other administrative agency wherein an unfavorable decision, ruling or finding may materially adversely affect the business, operations, prospects or financial condition or income of the Company, except as set forth in the Registration Statement and Prospectus, (iii) no stop order shall have been issued under the Securities Act and no proceedings therefor shall have been initiated or threatened by the Commission, and (Biv) is a fair estimate the Registration Statement and the Prospectus and any amendments or supplements thereto shall contain all material statements which are required to be stated therein in accordance with the Securities Act and the Securities Act Regulations and shall conform in all material respects to the requirements of the Company’s total revenues Securities Act and net income the Securities Act Regulations, and neither the Registration Statement nor the Prospectus nor any amendment or supplement thereto shall contain any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(h) All proceedings taken in connection with the authorization, issuance or sale of the Securities as herein contemplated shall be reasonably satisfactory in form and substance to the Representatives. On or prior to the Closing Date and the Additional Closing Date, as the case may be, counsel for the three months ended June 30Underwriters shall have been furnished such documents, 2011 certificates and has opinions as they may reasonably require for the purpose of enabling them to review or pass upon the matters referred to in this Section, or in order to evidence the accuracy, completeness or satisfaction of any of the representations, warranties or conditions herein contained. If any of the conditions specified in this Section shall not have been derived from fulfilled when and as required by this Agreement, or if any of the Company’s accounting and/or financial recordscertificates, opinions, written statements or letters furnished to the Underwriters pursuant to this Section shall not be in all material respects reasonably satisfactory in form and substance to the Underwriters, all obligations of the Underwriters hereunder may be canceled by the Underwriters at, or at any time prior to, the Closing Date. Notice of such cancellation shall be given to the Company in writing, or by telephone, telex or telegraph, confirmed in writing.
Appears in 2 contracts
Sources: Underwriting Agreement (Uqm Technologies Inc), Underwriting Agreement (Uqm Technologies Inc)
Conditions of Underwriters’ Obligations. The several obligations of the Underwriters hereunderto purchase and pay for the Firm Shares and the Additional Shares, as to the Shares to be delivered at each Time of Deliveryprovided herein, shall be subjectsubject to the accuracy of the representations and warranties of the Company herein contained, in their discretionas of the date hereof and as of the Closing Date (for purposes of this Section 7, "Closing Date" shall refer to the Closing Date for the Firm Shares and any Additional Closing Date, if different, for the Additional Shares), to the condition that all representations and warranties and other statements of performance by the Company and of the Selling Stockholders herein are, at and as of such Time of Delivery, true and correct, the condition that the Company and the Selling Stockholders shall have performed all of its and their obligations hereunder theretofore to be performedhereunder, and to each of the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in a timely fashion in accordance with Section 5(a4(a)(i) hereof; all material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433 under the Act; if the Company has elected to rely upon Rule 462(b) under the Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m., Washington, D.C. time, on the date of this Agreement; no stop order suspending the effectiveness of the Registration Statement or any part thereof post-effective amendment thereto, and no stop order suspending or preventing the use of any Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus, shall have been issued by the Commission and no proceeding for that purpose proceedings therefor shall have been initiated or threatened by the Commission; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your the Representative's reasonable satisfaction;; if the Company has elected to rely on Rule 462(b) under the Securities Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m. (Washington, D.C. time) on the date of this Agreement; and all necessary regulatory or stock exchange approvals shall have been received.
(b) Xxxxx Xxxxx L.L.P., counsel for At the Underwriters, shall have furnished to Closing Date you such written opinion or opinions, dated such Time of Delivery, in form and substance reasonably satisfactory to you, with respect to such matters as you may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;
(c) Xxxxxx the written opinion of Holland & Xxxxxx L.L.P.Knight LLP, counsel for the Company, shall have furnished dated the Closing Date and addressed to you their written opinion, dated such Time of Deliverythe Underwriters, in form and substance satisfactory to you, to the effect set forth on Annex II.
(d) Xxxxxxxx X. Xxxxx, General Counsel and Corporate Secretary of the Company, shall have furnished to you his written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex III.
(e) Xxxx Xxxxxxxxxx & Xxxxxxxxx LLP, special Indiana counsel for the Company, shall have furnished to you their written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex IV.
(f) Xxxxxx LLP, counsel for each of the Selling Stockholders, as indicated in Schedule IIA hereto, shall have furnished to you their written opinion with respect to each of the Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to youRepresentative, to the effect set forth in Annex V.I hereto.
(gc) Such local counsel as you shall reasonably require At the Closing Date, the Representative shall have furnished to you their received the written opinion with respect to each of the foreign Selling StockholdersUnderwriters' Counsel, dated the First Time of DeliveryClosing Date and addressed to the Underwriters, in form and substance satisfactory to youthe Representative, with respect to the effect set forth in Annex VI.
(h) On the date issuance and sale of the Prospectus at a time prior to the execution of this AgreementShares, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to Statement, the date of this Agreement Pricing Disclosure Package, the Prospectus and also at each Time of Deliverysuch other matters as the Representative may require, UHY, LLP and the Company shall have furnished to Underwriters' Counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(d) At the Closing Date you shall have received a letter or letterscertificate of the Chief Executive Officer and Chief Accounting Officer of the Company, dated the respective dates of delivery thereofClosing Date, in form and substance satisfactory to you;
(i) On the Representative, as to the accuracy of the representations and warranties of the Company set forth in Section 1 hereof as of the date hereof and as of the Prospectus Closing Date, as to the performance by the Company of all of its obligations hereunder to be performed at a time or prior to the execution Closing Date, as to the matters set forth in subsections (a), (f) and (g) of this AgreementSection 7, and as to such other matters as the Representative may reasonably request.
(e) At the time this Agreement is executed and at 9:30 a.m.the Closing Date, New York City timeyou shall have received a comfort letter, on from Xxxx & Associates LLP, independent public accountants for the effective date Company, dated, respectively, as of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time as of Deliverythe Closing Date, Flackman Xxxxxxx & Xxxxxx, P.A. shall have furnished addressed to you a letter or letters, dated the respective dates of delivery thereof, Underwriters and in form and substance satisfactory to you;the Underwriters and Underwriters' Counsel.
(f) (i) Neither the The Company nor the Subsidiaries shall not have sustained sustained, since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus Prospectus, any material loss or interference with its business or properties from fire, explosion, flood flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or court any legal or governmental action, order or decreeproceeding, other than as set forth or contemplated in the Pricing Prospectus (exclusive of any supplement thereto); and (ii) since subsequent to the respective dates as of which information is given in the Registration Statement (exclusive of any amendment thereto subsequent to the date hereof) and the Pricing Prospectus (exclusive of any supplement thereto), there shall not have been any change in the capital stock or long-term or short-term debt of the Company or the Subsidiaries or any change, change or any development involving a prospective change, whether or not arising from transactions in or affecting the ordinary course of business, in the business, general affairs, management, condition (financial positionor otherwise), results of operations, stockholders’ equity ' equity, properties or results of operations prospects of the Company and the Subsidiaries, other than as set forth or contemplated in the Pricing ProspectusCompany, the effect of which, in any such case described in clause (i) or (ii)above, is is, in the judgment of the Representatives Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery Offering on the terms and in the manner contemplated in the Pricing Prospectus;Prospectus (exclusive of any such supplement).
(kg) On or after the Applicable Time, there (i) no downgrading shall not have occurred in the rating accorded the Company's debt securities or the Company's financial strength or claims paying ability by any "nationally recognized statistical rating organization," as such term is defined by the Commission for purposes of Rule 436(g)(2) under the Securities Act, and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the following: (i) a suspension Company's debt securities or material limitation in trading in securities generally on the NYSE; (ii) a suspension or material limitation in trading in the Company’s securities on the NYSE; (iii) a general moratorium on commercial banking activities declared by either Federal 's financial strength or New York or Texas State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus;claims paying ability.
(lh) The Shares to be sold at such Time Representative, on behalf of Delivery all the Underwriters, shall have been received a duly admitted for trading and quotation on the NYSE;
(m) The Company shall have obtained and delivered to the Underwriters executed copies of a lock-up agreement from each person who is a director or officer of its directors the Company and executive officers, from each stockholder of the Selling Stockholders and each other stockholder identified Company listed on Schedule IV II hereto, in each case substantially in the form attached hereto as Annex I hereto;II.
(ni) The Company At the Closing Date, the Shares shall have complied with been approved for quotation on Nasdaq.
(j) At the provisions of Section 5(c) hereof Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the furnishing of prospectuses on the New York Business Day next succeeding the date of this Agreement; and
(o) The Company fairness and the Selling Stockholders shall have furnished or caused to be furnished to you at such Time of Delivery certificates of officers reasonableness of the Company underwriting terms and of arrangements for the Selling Stockholders, respectively, satisfactory to you as to the accuracy of the representations and warranties of the Company and the Selling Stockholders, respectively, herein at and as of such Time of Delivery, as to the performance by the Company and the Selling Stockholders of all of their respective obligations hereunder to be performed at or prior to such Time of Delivery, and the Company shall have furnished or caused to be furnished certificates as to the matters set forth in subsections (a) of this Section and as to such other matters as you may reasonably requestOffering.
(pk) The Company shall have furnished the Underwriters and Underwriters' Counsel with such other certificates, opinions or caused to be other documents as they may have reasonably requested. If any of the conditions specified in this Section 7 shall not have been fulfilled when and as required by this Agreement, or if any of the certificates, opinions, written statements or letters furnished to you at such Time of Delivery a certificate or to Underwriters' Counsel pursuant to this Section 7 shall not be satisfactory in form and substance to the Representative and to Underwriters' Counsel, all obligations of the Executive Vice PresidentUnderwriters hereunder may be cancelled by the Representative at, Chief Financial Officer or at any time prior to, the Closing Date and Treasurer the obligations of the Underwriters to purchase the Additional Shares may be cancelled by the Representative at, or at any time prior to, the Additional Closing Date. Notice of such cancellation shall be given to the effect that:
(i) He is familiar with the internal accounting records of the CompanyCompany in writing or by telephone. Any such telephone notice shall be confirmed promptly thereafter in writing.
(ii) He has reviewed the “Recent Developments” section contained in both the Preliminary Prospectus and the Prospectus. The information presented in such Recent Developments section (A) has been prepared in good faith and based upon assumptions that he believes are reasonable and consistent with the operations of the Company and (B) is a fair estimate in all material respects of the Company’s total revenues and net income for the three months ended June 30, 2011 and has been derived from the Company’s accounting and/or financial records.
Appears in 2 contracts
Sources: Underwriting Agreement (Ascent Solar Technologies, Inc.), Underwriting Agreement (Ascent Solar Technologies, Inc.)
Conditions of Underwriters’ Obligations. The Company, the Mid-Tier Company, the MHC, the Bank and the Representatives agree that the issuance and the sale of Shares and the issuance and sale of the shares of Common Stock in the Subscription Offering and the Community Offering and the issuance of the Exchange Shares and all obligations of the Underwriters hereunder, as hereunder are subject to the Shares to be delivered at each accuracy of the representations and warranties of the Company, the Mid-Tier Company, the MHC and the Bank herein contained as of the date hereof and the Time of Delivery, shall be subjectto the accuracy of the statements of officers and directors of the Company, in their discretionthe Mid-Tier Company, the MHC and the Bank made pursuant to the provisions hereof, to the condition that all representations and warranties and other statements of performance by the Company and of the Selling Stockholders herein are, at and as of such Time of Delivery, true and correctCompany, the condition that Mid-Tier Company, the Company MHC and the Selling Stockholders shall have performed all Bank of its and their obligations hereunder theretofore to be performedhereunder, and to the following additional further conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Securities Act Regulations and in accordance with Section 5(a3(a) hereof; all material required to be filed by the Company pursuant to Rule 433(d) under the Act hereof (or a post-effective amendment shall have been filed and declared effective in accordance with the Commission within the applicable time period prescribed for such filing by requirements of Rule 433 under the Act; if the Company has elected to rely upon Rule 462(b) under the Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m., Washington, D.C. time, on the date of this Agreement430A); no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission or the FRB shall have been complied with to your the Representatives’ reasonable satisfaction;; FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements; and no order suspending the sale of the Shares in any jurisdiction shall have been issued.
(b) Xxxxx Xxxxx L.L.P., counsel for the Underwriters, shall have furnished to you such written opinion or opinions, dated such At Time of Delivery, in form and substance reasonably satisfactory to you, with respect to such matters as you may reasonably request, and such counsel the Representatives shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;received:
(c1) The favorable opinion, dated as of Time of Delivery, of Xxxx Xxxxxx Xxxxxxxx & Xxxxxx L.L.P.Xxxxxx, P.C., counsel for the Company, shall have furnished to you their written opinionthe Mid-Tier Company, dated such Time of Deliverythe MHC and the Bank, in form and substance satisfactory to youcounsel for the Representatives as attached hereto as Exhibit A.
(2) The favorable opinion, dated as of Time of Delivery, of Xxxxxxxxxx Xxxxxxxx & Xxxxxxxx LLP, counsel for the Representatives, as to such matters as the Representatives shall reasonably require.
(3) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. and Xxxxxxxxxx Xxxxxxxx & Xxxxxxxx LLP shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time it became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective or at Time of Delivery, or (if applicable) that the General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. and Xxxxxxxxxx Xxxxxxxx & Xxxxxxxx LLP may rely as to matters of fact on certificates of officers and directors of the Company, the Mid-Tier Company, the MHC and the Bank and certificates of public officials. Xxxxxxxxxx Xxxxxxxx & Xxxxxxxx LLP may also rely on the opinion of Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C.
(c) At Time of Delivery referred to in Section 2 hereof, the Company, the Mid-Tier Company, the MHC and the Bank shall have completed in all material respects the conditions precedent to the effect set forth on Annex IIConversion in accordance with the Plan, the applicable FRB Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company, the Mid-Tier Company, the MHC or the Bank by the Federal Reserve Board, or any other regulatory authority other than those which the Federal Reserve Board permits to be completed after the Conversion.
(d) Xxxxxxxx X. Xxxxx, General Counsel and Corporate Secretary of the Company, shall have furnished to you his written opinion, dated such At Time of Delivery, in form and substance satisfactory to youthere shall not have been, to the effect set forth on Annex III.
(e) Xxxx Xxxxxxxxxx & Xxxxxxxxx LLP, special Indiana counsel for the Company, shall have furnished to you their written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex IV.
(f) Xxxxxx LLP, counsel for each of the Selling Stockholders, as indicated in Schedule IIA hereto, shall have furnished to you their written opinion with respect to each of the Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex V.
(g) Such local counsel as you shall reasonably require shall have furnished to you their written opinion with respect to each of the foreign Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex VI.
(h) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, UHY, LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, Flackman Xxxxxxx & Xxxxxx, P.A. shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) Neither the Company nor the Subsidiaries shall have sustained since the date of the latest audited financial statements included in the Pricing Prospectus any loss hereof or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, other than as set forth or contemplated in the Pricing Prospectus and (ii) since the respective dates as of which information is given in the Pricing Prospectus Registration Statement and the Prospectus, any Material Adverse Effect, whether or not arising in the ordinary course of business and the Representatives shall have received a certificate of the President and Chief Executive Officer of the Company, of the Mid-Tier Company, of the MHC and of the Bank and the Executive Vice President, Chief Operating and Chief Financial Officer of the Company, of the Mid-Tier Company, of the MHC and of the Bank, dated as of Time of Delivery, to the effect that (i) there has been no such material adverse change, (ii) there shall not have been no material transaction entered into by the Company, the Mid-Tier Company, the MHC or the Bank from the latest date as of which the financial condition of the Company, the Mid-Tier Company, the MHC or the Bank, as set forth in the Registration Statement and the Prospectus other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice (iii) neither the Company, the Mid-Tier Company, the MHC nor the Bank shall have received from the Federal Reserve Board, the OCC or the FDIC any order or direction (oral or written) to make any material change in the capital stock method of conducting its business with which it has not complied (which order or long-term debt direction, if any, shall have been disclosed in writing to the Representatives) or which materially and adversely would affect the business, financial condition, results of operations or prospects of the Company Company, the Mid-Tier Company, the MHC or the Subsidiaries Bank, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Time of Delivery, (v) each of the Company, the Mid-Tier Company, the MHC and the Bank have complied with all agreements and satisfied all conditions on their part to be performed or any changesatisfied at or prior to Time of Delivery, including all agreements and all conditions set forth in the Agency Agreement, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Commission and (vii) no order suspending the Federal Reserve Board’s approval of the Conversion Application, or the transactions contemplated thereby, has been issued and no proceedings for that purpose have been initiated or threatened by the Federal Reserve Board and no person has sought to obtain regulatory or judicial review of the action of the Federal Reserve Board in approving the Plan in accordance with the FRB Regulations nor has any development involving person sought to obtain regulatory or judicial review of the action of the Federal Reserve Board in approving the Conversion Application.
(e) At the Time of Delivery, the Representatives shall have received a prospective changecertificate of the President and Chief Executive Officer of the Mid-Tier Company, the Company and the Bank and the Executive Vice President and Chief Financial Officer of the Mid-Tier Company, the Company and the Bank, dated as of Time of Delivery, to the effect that (i) they have reviewed the contents of the Registration Statement and the Prospectus; (ii) based on each of their knowledge, the Registration Statement and the Prospectus do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in or affecting light of the general affairscircumstances under which such statements were made, managementnot misleading; and (iii) based on each of their knowledge, the financial position, stockholders’ equity or statements and other financial information included in the Registration Statement and the Prospectus fairly present the financial condition and results of operations of the Mid-Tier Company and the SubsidiariesBank as of and for the dates and periods covered by the Registration Statement and the Prospectus.
(f) As of the date hereof, other than the Representatives shall have received from KPMG LLP a letter dated such date, in form and substance satisfactory to the Representatives, to the effect that: (i) they are independent public accountants with respect to the Company, the Mid-Tier Company, the MHC and the Bank within the meaning of the Code of Ethics of the AICPA, the Securities Act and the Securities Act Regulations and the FRB Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the Xxxxxxxx-Xxxxx Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement, including any post-effective amendment thereto, and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Representatives and KPMG LLP set forth or contemplated in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and supporting schedules of the Mid-Tier Company included in the Pricing Registration Statement do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act, the Securities Act Regulations and the FRB Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data” in the Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited financial statements included in the Registration Statement, (C) at a specified date not more than five (5) business days prior to the date of this Agreement, there has been any increase in the consolidated long term or short term debt of the Mid-Tier Company or any decrease in consolidated total assets, the allowance for loan losses, total deposits or net worth of the Mid-Tier Company, in each case as compared with the amounts shown in the September 30, 2012 consolidated balance sheets included in the Registration Statement or, (D) during the period from September 30, 2012 to a specified date not more than five (5) business days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier Company, except in all instances for increases or decreases which the Registration Statement and the Prospectus disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information that are included in the Registration Statement and Prospectus and that are specified by the Representatives, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Company, the Mid-Tier Company, the MHC and the Bank identified in such letter.
(g) The “lock-up” agreements, each substantially in the form of Exhibit B hereto, between the Representatives and the persons set forth on Exhibit C hereto, relating to sales and certain other dispositions of shares of Common Stock, Mid-Tier Company Common Stock or certain other securities, shall be delivered to the Representatives on or before the date hereof and shall be in full force and effect on the Time of Delivery.
(h) At Time of Delivery, the Representatives shall have received from KPMG LLP a letter, dated as of Time of Delivery, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to Time of Delivery.
(i) At Time of Delivery, the Securities and Exchange Shares shall have been approved for quotation on the Nasdaq Global Select Market upon notice of issuance.
(j) At Time of Delivery, the Representatives shall have received a letter from the Appraiser, dated as of the Time of Delivery, confirming its Appraisal.
(k) At Time of Delivery, counsel for the Representatives shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities, including the Shares and Exchange Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities, including the Shares and Exchange Shares as herein contemplated shall be satisfactory in form and substance to the Representatives and counsel for the Representatives.
(l) At any time prior to Time of Delivery, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives Representatives, are so material and adverse as to make it impracticable to market the Shares or inadvisable to proceed with enforce contracts, including subscriptions or orders, for the public offering sale of the Securities, and (ii) trading generally on either the American Stock Exchange, the New York Stock Exchange or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Pricing Prospectus;
(k) On or after the Applicable Time, there Nasdaq Stock Market shall not have occurred any been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either of said Exchanges or by order of the following: (i) Commission or any other governmental authority, and a suspension or material limitation in trading in securities generally on the NYSE; (ii) a suspension or material limitation in trading in the Company’s securities on the NYSE; (iii) a general banking moratorium on commercial banking activities shall not have been declared by either Federal Federal, New Jersey or New York or Texas State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus;
(l) The Shares to be sold at such Time of Delivery shall have been duly admitted for trading and quotation on the NYSE;
(m) The Company shall have obtained and delivered to the Underwriters executed copies of a lock-up agreement from each of its directors and executive officers, the Selling Stockholders and each other stockholder identified on Schedule IV hereto, in the form attached as Annex I hereto;
(n) The Company shall have complied with the provisions of Section 5(c) hereof with respect to the furnishing of prospectuses on the New York Business Day next succeeding the date of this Agreement; and
(o) The Company and the Selling Stockholders shall have furnished or caused to be furnished to you at such Time of Delivery certificates of officers of the Company and of the Selling Stockholders, respectively, satisfactory to you as to the accuracy of the representations and warranties of the Company and the Selling Stockholders, respectively, herein at and as of such Time of Delivery, as to the performance by the Company and the Selling Stockholders of all of their respective obligations hereunder to be performed at or prior to such Time of Delivery, and the Company shall have furnished or caused to be furnished certificates as to the matters set forth in subsections (a) of this Section and as to such other matters as you may reasonably requestauthorities.
(p) The Company shall have furnished or caused to be furnished to you at such Time of Delivery a certificate of the Executive Vice President, Chief Financial Officer and Treasurer to the effect that:
(i) He is familiar with the internal accounting records of the Company.
(ii) He has reviewed the “Recent Developments” section contained in both the Preliminary Prospectus and the Prospectus. The information presented in such Recent Developments section (A) has been prepared in good faith and based upon assumptions that he believes are reasonable and consistent with the operations of the Company and (B) is a fair estimate in all material respects of the Company’s total revenues and net income for the three months ended June 30, 2011 and has been derived from the Company’s accounting and/or financial records.
Appears in 2 contracts
Sources: Agency Agreement (Northfield Bancorp, Inc.), Agency Agreement (Northfield Bancorp, Inc.)
Conditions of Underwriters’ Obligations. The several obligations of the Underwriters hereunderto purchase and pay for the Firm Shares and the Additional Shares, as to the Shares to be delivered at each Time of Deliveryprovided herein, shall be subjectsubject to the accuracy of the representations and warranties of the Company herein contained, in their discretionas of the date hereof and as of the Closing Date (for purposes of this Section 7, “Closing Date” shall refer to the Closing Date for the Firm Shares and any Additional Closing Date, if different, for the Additional Shares), to the condition that all representations and warranties and other statements of performance by the Company and of the Selling Stockholders herein are, at and as of such Time of Delivery, true and correct, the condition that the Company and the Selling Stockholders shall have performed all of its and their obligations hereunder theretofore to be performedhereunder, and to each of the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in a timely fashion in accordance with Section 5(a4(a) hereof; all material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433 under the Act; if the Company has elected to rely upon Rule 462(b) under the Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m., Washington, D.C. time, on the date of this Agreement; no stop order suspending the effectiveness of the Registration Statement or any part thereof post-effective amendment thereto, and no stop order suspending or preventing the use of any Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus, shall have been issued by the Commission and no proceeding for that purpose proceedings therefor shall have been initiated or threatened by the Commission; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction;; if the Company has elected to rely on Rule 462(b) under the Securities Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m. (New York City time) on the date of this Agreement; and all necessary regulatory or stock exchange approvals shall have been received.
(b) Xxxxx Xxxxx L.L.P., counsel for At the Underwriters, shall have furnished to Closing Date you such written opinion or opinions, dated such Time of Delivery, in form and substance reasonably satisfactory to you, with respect to such matters as you may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;
(c) Xxxxxx & Xxxxxx L.L.P.the written opinion of TroyGould PC, counsel for the Company, shall have furnished to you their written opinion, dated such Time of Delivery, in form the Closing Date and substance satisfactory to you, addressed to the effect set forth on Annex II.
(d) Xxxxxxxx X. Xxxxx, General Counsel and Corporate Secretary of the Company, shall have furnished to you his written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex III.
(e) Xxxx Xxxxxxxxxx & Xxxxxxxxx LLP, special Indiana counsel for the Company, shall have furnished to you their written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex IV.
(f) Xxxxxx LLP, counsel for each of the Selling Stockholders, as indicated in Schedule IIA hereto, shall have furnished to you their written opinion with respect to each of the Selling Stockholders, dated the First Time of DeliveryUnderwriters, in form and substance satisfactory to you, to the effect set forth in Annex V.Exhibit A hereto.
(gc) Such local counsel as At the Closing Date you shall reasonably require shall have furnished to you their received the written opinion with respect to each of Xxxxxx McKonkie, intellectual property counsel for the foreign Selling StockholdersCompany, dated the First Time of DeliveryClosing Date and addressed to the Underwriters, in form and substance satisfactory to you, to the effect set forth in Annex VIExhibit B hereto.
(hd) On At the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, UHY, LLP Closing Date you shall have furnished to you a letter or lettersreceived the written opinion of Xxxxxxxxx & Xxxxxxx LLP, regulatory counsel for the Company, dated the respective dates of delivery thereofClosing Date and addressed to the Underwriters, in form and substance satisfactory to you;, to the effect set forth in Exhibit C hereto.
(ie) On At the date of the Prospectus at a time prior to the execution of this AgreementClosing Date, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, Flackman Xxxxxxx & Xxxxxx, P.A. you shall have furnished to you a letter or lettersreceived the written opinion of Underwriters’ Counsel, dated the respective dates of delivery thereofClosing Date and addressed to the Underwriters, in form and substance satisfactory to you;, with respect to the issuance and sale of the Shares, the Registration Statement, the Pricing Disclosure Package, the Prospectus and such other matters as you may require, and the Company shall have furnished to Underwriters’ Counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(f) At the Closing Date you shall have received a certificate of the Chief Executive Officer and Chief Financial Officer of the Company, dated the Closing Date, in form and substance satisfactory to you, as to the accuracy of the representations and warranties of the Company set forth in Section 1 hereof as of the date hereof and as of the Closing Date, as to the performance by the Company of all of its obligations hereunder to be performed at or prior to the Closing Date, as to the matters set forth in subsections (a), (h) and (i) Neither of this Section 7, and as to such other matters as you may reasonably request.
(g) At the Company nor time this Agreement is executed and at the Subsidiaries Closing Date, you shall have sustained since received a comfort letter, from KMJ Xxxxxx & Company, independent public accountants for the Company, dated, respectively, as of the date of this Agreement and as of the latest audited Closing Date, addressed to the Underwriters and in form and substance satisfactory to the Underwriters and Underwriters’ Counsel, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements included and certain financial information contained in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
(h) No event or condition of a type described in Section 1(h) hereof shall have occurred or shall exist, which event or condition is not described in the Pricing Prospectus Disclosure Package (excluding any loss amendment or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, other than as set forth or contemplated in the Pricing Prospectus and (iisupplement thereto) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or the Subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and the Subsidiaries, other than as set forth Prospectus (excluding any amendment or contemplated in the Pricing Prospectus, supplement thereto) and the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Pricing Prospectus;
(k) On or after the Applicable Time, there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the NYSE; (ii) a suspension or material limitation in trading in the Company’s securities on the NYSE; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Texas State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) which in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering offering, sale or the delivery of the Shares being delivered at such Time of Delivery on the Closing Date or the Additional Closing Date, as the case may be, on the terms and in the manner contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus.
(i) On or after the Applicable Time, (i) no downgrading shall have occurred in the Prospectus;rating accorded any securities of the Company’s by any “nationally recognized statistical rating organization”, as such term is defined by the Commission for purposes of Rule 436(g)(2) under the Securities Act, and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any securities of the Company.
(lj) No Underwriter shall have discovered and disclosed to the Company on or prior to such Closing Date that the Registration Statement, the Pricing Disclosure Package or the Prospectus, or any amendment or supplement thereto, contains an untrue statement of a fact which, in the opinion of Underwriters’ Counsel, is material or omits to state a fact which, in the opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(k) The Shares to be sold at such Time of Delivery Representatives shall have been received a duly admitted for trading and quotation on the NYSE;
(m) The Company shall have obtained and delivered to the Underwriters executed copies of a lockLock-up agreement Up Agreement from each person who is a director or officer of its directors and executive officers, the Selling Stockholders Company and each other stockholder identified person or entity listed on Schedule IV hereto, in each case substantially in the form attached hereto as Annex I hereto;Exhibit D.
(l) At the Closing Date, the Shares shall have been approved for quotation on NASDAQ, subject only to official notice of issuance.
(m) At the Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements for the Offering.
(n) The Company shall have complied furnished the Underwriters and Underwriters’ Counsel with the provisions of Section 5(c) hereof with respect to the furnishing of prospectuses on the New York Business Day next succeeding the date of this Agreement; andsuch other certificates, opinions or other documents as they may have reasonably requested.
(o) The Company shall have received all necessary waivers of existing lock-up arrangements between it and the Selling Stockholders underwriters of its initial public offering necessary to permit the initial filing of the Registration Statement, the execution of a definitive underwriting agreement by it and other actions necessary to consummate the Offering. If any of the conditions specified in this Section 7 shall not have furnished been fulfilled when and as required by this Agreement, or caused to be if any of the certificates, opinions, written statements or letters furnished to you at such Time of Delivery certificates of officers or to Underwriters’ Counsel pursuant to this Section 7 shall not be satisfactory in form and substance to the Representatives and to Underwriters’ Counsel, all obligations of the Company Underwriters hereunder may be cancelled by the Representatives at, or at any time prior to, the Closing Date and the obligations of the Selling StockholdersUnderwriters to purchase the Additional Shares may be cancelled by the Representatives at, respectivelyor at any time prior to, satisfactory to you as the Additional Closing Date. Notice of such cancellation shall be given to the accuracy of the representations and warranties of the Company and the Selling Stockholders, respectively, herein at and as of in writing or by telephone. Any such Time of Delivery, as to the performance by the Company and the Selling Stockholders of all of their respective obligations hereunder to telephone notice shall be performed at or prior to such Time of Delivery, and the Company shall have furnished or caused to be furnished certificates as to the matters set forth confirmed promptly thereafter in subsections (a) of this Section and as to such other matters as you may reasonably requestwriting.
(p) The Company shall have furnished or caused to be furnished to you at such Time of Delivery a certificate of the Executive Vice President, Chief Financial Officer and Treasurer to the effect that:
(i) He is familiar with the internal accounting records of the Company.
(ii) He has reviewed the “Recent Developments” section contained in both the Preliminary Prospectus and the Prospectus. The information presented in such Recent Developments section (A) has been prepared in good faith and based upon assumptions that he believes are reasonable and consistent with the operations of the Company and (B) is a fair estimate in all material respects of the Company’s total revenues and net income for the three months ended June 30, 2011 and has been derived from the Company’s accounting and/or financial records.
Appears in 2 contracts
Sources: Underwriting Agreement (Kindred Biosciences, Inc.), Underwriting Agreement (Kindred Biosciences, Inc.)
Conditions of Underwriters’ Obligations. The obligations of the --------------------------------------- Underwriters hereunderto purchase and pay for the Firm Shares and the Additional Shares, as to the Shares to be delivered at each Time of Deliveryprovided herein, shall be subjectsubject to the accuracy of the representations and warranties of the Company herein contained, in their discretionas of the date hereof and as of the Closing Date (for purposes of this Section 6, "Closing Date" shall refer to the ------------ Closing Date for the Firm Shares and any Additional Closing Date, if different, for the Additional Shares), to the condition that all representations and warranties and other absence from any certificates, opinions, written statements or letters furnished to the Underwriters or to Xxxxxx & Xxxxxxx ("Underwriters' Counsel") pursuant to this Section 6 of any material --------------------- misstatement or omission, to the performance by the Company and of the Selling Stockholders herein are, at and as of such Time of Delivery, true and correct, the condition that the Company and the Selling Stockholders shall have performed all of its and their obligations hereunder theretofore to be performedhereunder, and to the following additional conditions:
(a) The Prospectus shall have been filed with Prior to the Commission pursuant to Rule 424(b) under Closing Date the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(a) hereof; all material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433 under the Act; if the Company has elected to rely upon Rule 462(b) under the Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m.effective, Washington, D.C. time, and on the date of this Agreement; Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the Securities Act or proceedings therefor initiated or, to the Company's knowledge, threatened by the Commission. The Prospectus shall have been filed or transmitted for filing with the Commission pursuant to Rule 424(b) of the Securities Act Regulations within the prescribed time period, and prior to Closing Date the Company shall have provided evidence satisfactory to the Underwriters of such timely filing or transmittal.
(b) All of the representations and warranties of the Company contained in this Agreement shall be true and correct on the date hereof and on the Closing Date with the same force and effect as if made on and as of the date hereof and the Closing Date, respectively. The Company shall have performed or complied with all of the agreements herein contained and required to be performed or complied with by it at or prior to the Closing Date.
(c) The Prospectus shall have been printed and copies distributed to the Underwriters not later than 10:00 a.m., New York City time, on the second business day following the date of this Agreement or at such later date and time as to which the Underwriters may agree, and no stop order suspending the qualification or exemption from qualification of the Shares in any part thereof jurisdiction referred to in Section 4(d) shall have been issued and no proceeding for that purpose shall have been initiated commenced or threatened by the Commission; no stop order suspending shall be pending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction;
(b) Xxxxx Xxxxx L.L.P., counsel for the Underwriters, shall have furnished to you such written opinion or opinions, dated such Time of Delivery, in form and substance reasonably satisfactory to you, with respect to such matters as you may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;
(c) Xxxxxx & Xxxxxx L.L.P., counsel for the Company, shall have furnished to you their written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex IIthreatened.
(d) Xxxxxxxx X. XxxxxNo action shall have been taken and no statute, General Counsel rule, regulation or order shall have been enacted, adopted or issued by any governmental agency which would, as of the Closing Date, prevent the issuance of the Shares; no action, suit or proceeding shall have been commenced and Corporate Secretary be pending against or affecting or, to the best knowledge of the Company, shall have furnished threatened against, the Company or any of its subsidiaries before any court or arbitrator or any governmental body, agency or official that (i) could reasonably be expected to you his written opinion, dated such Time of Delivery, result in form and substance satisfactory to you, to a Material Adverse Effect or (ii) has not been disclosed in the effect set forth on Annex IIIProspectus.
(e) Xxxx Xxxxxxxxxx & Xxxxxxxxx LLP, special Indiana counsel for Since the Company, shall have furnished to you their written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex IV.
(f) Xxxxxx LLP, counsel for each of the Selling Stockholders, as indicated in Schedule IIA hereto, shall have furnished to you their written opinion with respect to each of the Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex V.
(g) Such local counsel as you shall reasonably require shall have furnished to you their written opinion with respect to each of the foreign Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex VI.
(h) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, UHY, LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, Flackman Xxxxxxx & Xxxxxx, P.A. shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) Neither the Company nor the Subsidiaries shall have sustained since the date of the latest audited financial statements included in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, other than as set forth or contemplated in the Pricing Prospectus and (ii) since the respective dates as of which information is given in the Pricing Prospectus and except as contemplated by the Prospectus, (i) there shall not have been any change material adverse change, or any development that is reasonably likely to result in a material adverse change, in the capital stock or the long-term debt debt, or material increase in the short-term debt, of the Company or any of its subsidiaries from that set forth in the Subsidiaries Prospectus, (ii) no dividend or distribution of any kind shall have been declared, paid or made by the Company or any changeof its subsidiaries on any class of its capital stock, (iii) neither the Company nor any of its subsidiaries shall have incurred any liabilities or any development involving a prospective changeobligations, direct or contingent, that are material, individually or in or affecting the general affairsaggregate, management, financial position, stockholders’ equity or results of operations of to the Company and its subsidiaries, taken as a whole, and that are required to be disclosed on a balance sheet or notes thereto in accordance with generally accepted accounting principles and are not disclosed on the Subsidiaries, other than as set forth latest balance sheet or contemplated notes thereto included in the Pricing Prospectus, . Since the effect date hereof and since the dates as of which, in any such case described in clause (i) or (ii), which information is given in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Pricing Prospectus;
(k) On or after the Applicable Time, there shall not have occurred any Material Adverse Effect.
(f) The Underwriters shall have received a certificate, dated the Closing Date, signed on behalf of the following: Company by each of the Company's Chief Executive Officer and Chief Financial Officer in form and substance reasonably satisfactory to the Underwriters, confirming, as of the Closing Date, the matters set forth in paragraphs (a) through (e) of this Section 6 and that, as of the Closing Date, the obligations of the Company to be performed hereunder on or prior thereto have been duly performed in all material respects.
(g) The Underwriters shall have received on the Closing Date an opinion, dated the Closing Date, in form and substance satisfactory to the Underwriters and counsel to the Underwriters, of Kronish, Lieb, Weiner & Xxxxxxx LLP, counsel for the Company, to the effect set forth in Exhibit A --------- hereto.
(h) The Underwriters shall have received an opinion, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriters, of Xxxxxx & Xxxxxxx, counsel to the Underwriters, covering such matters as are customarily covered in such opinions.
(i) a suspension Xxxxxx & Xxxxxxx shall have been furnished with such documents, in addition to those set forth above, as they may reasonably require for the purpose of enabling them to review or pass upon the matters referred to in this Section 6 and in order to evidence the accuracy, completeness or satisfaction in all material limitation in trading in securities generally on the NYSE; (ii) a suspension or material limitation in trading in the Company’s securities on the NYSE; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Texas State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence respects of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable representations, warranties or inadvisable to proceed with conditions herein contained.
(j) At the time this Agreement is executed and at the Closing Date the Underwriters shall have received from Ernst & Young LLP, independent public offering or accountants for the delivery Company and its subsidiaries, dated as of the Shares being delivered at such Time date of Delivery on this Agreement and as of the terms Closing Date, customary comfort letters addressed to the Underwriters and in form and substance satisfactory to the manner contemplated Underwriters and counsel to the Underwriters with respect to the financial statements and certain financial information of the Company and its subsidiaries contained in the Prospectus;.
(l) The At the Closing Date, the Shares to be sold at such Time of Delivery shall have been duly admitted approved for trading and quotation on the NYSE;Nasdaq.
(m) The Company shall have obtained At the time this Agreement is executed and delivered to at the Underwriters executed copies of a lock-up agreement from each of its directors and executive officersClosing Time, the Selling Stockholders NASD shall not have withdrawn, or given notice of an intention to withdraw, its approval of the fairness of the underwriting terms and each other stockholder identified on Schedule IV hereto, in arrangements of the form attached as Annex I hereto;offering of the Shares by the Underwriters.
(n) The Company Each of the General Administrative and Services Agreement, Master Network Services Agreement, Public Internet Access Services Agreement, and Customer Network and Application Services Agreement shall be in full force and effect, and no party to any such agreement shall have complied with the provisions given any notice of Section 5(c) hereof with respect termination or amendment of any material provision thereof, or of any intention to the furnishing of prospectuses on the New York Business Day next succeeding the date of this Agreement; andterminate or amend any material provision thereof, to any other party, and no event shall have occurred which would prevent either party from substantially performing its obligations under such agreements.
(o) The Company All opinions, certificates, letters and the Selling Stockholders shall have furnished or caused other documents required by this Section 6 to be furnished to you at such Time of Delivery certificates of officers of the Company and of the Selling Stockholders, respectively, satisfactory to you as to the accuracy of the representations and warranties of the Company and the Selling Stockholders, respectively, herein at and as of such Time of Delivery, as to the performance delivered by the Company will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to the Selling Stockholders Underwriters. The Company will furnish the Underwriters with such conformed copies of all of their respective obligations hereunder such opinions, certificates, letters and other documents as Bear Xxxxxxx shall reasonably request. Prior to be performed at or prior to such Time of Deliverythe Closing Date, and the Company shall have furnished or caused to be furnished certificates as to the matters set forth in subsections (a) of this Section Underwriters such further information, certificates and documents as to such other matters as you the Underwriters may reasonably request.
(p) The Company . If any of the conditions specified in this Section 6 shall not have furnished been fulfilled when and as required by this Agreement, or caused to be if any of the certificates, opinions, written statements or letters furnished to you at such Time of Delivery a certificate of the Executive Vice President, Chief Financial Officer and Treasurer Underwriters or to the effect that:
(i) He is familiar with the internal accounting records of the Company.
(ii) He has reviewed the “Recent Developments” section contained in both the Preliminary Prospectus and the Prospectus. The information presented in such Recent Developments section (A) has been prepared in good faith and based upon assumptions that he believes are reasonable and consistent with the operations of the Company and (B) is a fair estimate Underwriters' Counsel pursuant to this Section 6 shall not be in all material respects reasonably satisfactory in form and substance to the Underwriters and to Underwriters' Counsel, all obligations of the Company’s total revenues Underwriters hereunder may be canceled by the Underwriters at, or at any time prior to, the Closing Date and net income for the three months ended June 30obligations of the Underwriters to purchase the Additional Shares may be canceled by the Underwriters at, 2011 and has been derived from or at any time prior to, the Company’s accounting and/or financial recordsAdditional Closing Date. Notice of such cancellation shall be given to the Company in writing, or by telephone, telecopy, telex or telegraph, confirmed in writing.
Appears in 2 contracts
Sources: Underwriting Agreement (Digex Inc/De), Underwriting Agreement (Digex Inc/De)
Conditions of Underwriters’ Obligations. The obligations of the Underwriters hereunderhereunder shall be subject to the performance by the District of its obligations to be performed hereunder at or prior to the Closing Date, to the accuracy of and compliance with the representations, warranties, and covenants of the District herein, as to of the Shares to be delivered at each Time time of Deliverydelivery of this Bond Purchase Agreement and as of the Closing Date, shall be and are also subject, in their discretionthe discretion of the Underwriters, to the condition that all representations and warranties and other statements of the Company and of the Selling Stockholders herein are, at and as of such Time of Delivery, true and correct, the condition that the Company and the Selling Stockholders shall have performed all of its and their obligations hereunder theretofore to be performed, and the following additional further conditions:
(a) The Prospectus representations and warranties of the District contained herein shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules be true, complete and regulations under the Act and in accordance with Section 5(a) hereof; all material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433 under the Act; if the Company has elected to rely upon Rule 462(b) under the Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m., Washington, D.C. time, correct on the date of this Agreement; no stop order suspending the effectiveness hereof and on and as of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information Closing Date, as if made on the part of the Commission shall have been complied with to your reasonable satisfaction;Closing Date.
(b) Xxxxx Xxxxx L.L.P.At the Closing Date, counsel for the Master Trust Indenture, the Series Resolution and the Continuing Disclosure Agreement shall be in full force and effect and shall not have been amended, modified or supplemented, except in connection with the transactions contemplated by the Official Statement, and the Official Statement shall not have been supplemented or amended, except as may have been agreed to by the Underwriters, shall have furnished to you such written opinion or opinions, dated such Time of Delivery, in form and substance reasonably satisfactory to you, with respect to such matters as you may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;.
(c) Xxxxxx & Xxxxxx L.L.P., counsel for the Company, The District shall have furnished performed and complied with all agreements and conditions contained herein and in the instruments contemplated hereby that are required to you their written opinion, dated such Time of Delivery, in form and substance satisfactory be performed or complied with by the District prior to you, to or at the effect set forth on Annex IIClosing Date.
(d) Xxxxxxxx X. XxxxxAt or prior to the Closing Date, General Counsel the Underwriters shall have received the following documents:
(i) The Official Statement, and Corporate Secretary each supplement or amendment, if any, thereto, executed on behalf of the CompanyDistrict by the Chairman;
(ii) Certified copies of the Master Trust Indenture, shall have furnished to you his written opinionSeries Resolution and the Continuing Disclosure Agreement and all assignments, amendments, supplements and other instruments delivered pursuant thereto;
(iii) An opinion of Xxxxxxx Coie LLP, Chicago, Illinois, Bond Counsel, dated such Time the date of Deliverythe Closing, in substantially the form included in the Official Statement as Appendix E, and substance satisfactory (if the foregoing opinion is not addressed to youthe Underwriters) a letter of such counsel, dated the Closing Date and addressed to the Underwriters, to the effect set forth on Annex III.that the foregoing opinion may be relied upon by the Underwriters to the same extent as if such opinion were addressed to the Underwriters;
(eiv) Xxxx Xxxxxxxxxx & Xxxxxxxxx LLP, special Indiana counsel for An opinion of the Company, shall have furnished to you their written opinionSouth Dakota Attorney General or Assistant or Deputy Attorney General, dated such Time of Deliverythe Closing Date and addressed to the Underwriters, in form and substance satisfactory to you, to the effect set forth on Annex IV.Underwriters;
(fv) Xxxxxx A supplemental opinion of Xxxxxxx Coie LLP, counsel for each of the Selling Stockholders, as indicated in Schedule IIA hereto, shall have furnished to you their written opinion with respect to each of the Selling StockholdersBond Counsel, dated the First Time of DeliveryClosing Date and addressed to the Underwriters, in form and substance satisfactory to youthe Underwriters;
(vi) An opinion of Faegre Xxxxx Xxxxxxx LLP, Minneapolis, Minnesota, counsel to the effect set forth in Annex V.
(g) Such local counsel as you shall reasonably require shall have furnished to you their written opinion with respect to each of the foreign Selling StockholdersUnderwriters, dated the First Time of Delivery, in form Closing Date and substance satisfactory to you, addressed to the effect set forth in Annex VI.Underwriters, addressing such matters as may be requested by the Underwriters;
(hvii) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, UHY, LLP shall have furnished to you a letter or lettersA certificate, dated the respective dates of delivery thereofClosing Date, in form and substance satisfactory to you;
(i) On signed by the date Chairman of the Prospectus at a time prior to the execution of this AgreementDistrict, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, Flackman Xxxxxxx & Xxxxxx, P.A. shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) Neither the Company nor the Subsidiaries shall have sustained since the date of the latest audited financial statements included in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, other than as set forth or contemplated in the Pricing Prospectus and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or the Subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and the Subsidiaries, other than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Pricing Prospectus;
(k) On or after the Applicable Time, there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the NYSE; (ii) a suspension or material limitation in trading in the Company’s securities on the NYSE; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Texas State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus;
(l) The Shares to be sold at such Time of Delivery shall have been duly admitted for trading and quotation on the NYSE;
(m) The Company shall have obtained and delivered to the Underwriters executed copies of a lock-up agreement from each of its directors and executive officers, the Selling Stockholders and each other stockholder identified on Schedule IV hereto, in the form attached as Annex I hereto;
(n) The Company shall have complied with the provisions of Section 5(c) hereof with respect to the furnishing of prospectuses on the New York Business Day next succeeding the date of this Agreement; and
(o) The Company and the Selling Stockholders shall have furnished or caused to be furnished to you at such Time of Delivery certificates of officers of the Company and of the Selling Stockholders, respectively, satisfactory to you as to the accuracy of confirming that the representations and warranties of the Company District set forth herein are true and correct as of the Closing Date;
(viii) A certificate of an authorized officer of the District, pursuant to Section 148 of the Internal Revenue Code of 1986, as amended, and the Selling Stockholdersapplicable regulations thereunder, respectivelysetting forth the expectations of the District on the date of authentication and delivery of the Bonds as to future events, herein at and such certification shall set forth the facts and estimates on which such expectations are based and shall state that to the best of the knowledge and belief of such officer of the District, the District’s expectations are reasonable;
(ix) Such additional legal opinions, certificates, instruments and other documents as the Underwriters may reasonably request to evidence the truth and accuracy, as of the date hereof and as of such Time the Closing Date, of Deliverythe District’s representation and warranties contained herein, as and of the statements and information contained in the Official Statement and the due performance or satisfaction by the District on or prior to the performance by the Company and the Selling Stockholders Closing Date of all of their respective obligations hereunder agreements then to be performed at or prior to such Time of Delivery, and the Company shall have furnished or caused conditions then to be furnished certificates as satisfied by it; and
(x) Evidence satisfactory to the matters set forth Underwriters that the Bonds have received ratings of “Aaa” from Xxxxx’x Investors Service, Inc. and “AAA” from Standard & Poor’s Public Finance Ratings and that such ratings are in subsections (a) of this Section effect on the Closing Date. All such opinions, certificates, letters and as to such other matters as you may reasonably request.
(p) The Company shall have furnished or caused to documents will be furnished to you at such Time of Delivery a certificate of the Executive Vice President, Chief Financial Officer and Treasurer to the effect that:
(i) He is familiar in compliance with the internal accounting records of the Company.
(ii) He has reviewed the “Recent Developments” section contained in both the Preliminary Prospectus and the Prospectus. The information presented in such Recent Developments section (A) has been prepared in good faith and based upon assumptions that he believes provisions hereof only if they are reasonable and consistent with the operations of the Company and (B) is a fair estimate in all material respects satisfactory to us, as to which we shall act reasonably. If any condition of our obligation hereunder to be satisfied prior to the Closing Date is not so satisfied, this Agreement may be terminated by us by notice in writing or by telegram to the District. We may waive in writing compliance by the District with any one or more of the Company’s total revenues and net income foregoing conditions or extend the time for the three months ended June 30, 2011 and has been derived from the Company’s accounting and/or financial recordstheir performance.
Appears in 2 contracts
Conditions of Underwriters’ Obligations. The respective obligations of the Underwriters hereunderto purchase and pay for the Firm Shares as provided herein on the First Closing Date and, as with respect to the Shares to be delivered at each Time of DeliveryOption Shares, the Option Closing Date, shall be subjectsubject to the accuracy of the representations and warranties on the part of the Company set forth in Section 1 hereof as of the date hereof and as of the First Closing Date as though then made and, in their discretionwith respect to the Option Shares, as of the Option Closing Date as though then made, to the condition that all representations and warranties and other statements of timely performance by the Company and of the Selling Stockholders herein are, at and as of such Time of Delivery, true and correct, the condition that the Company and the Selling Stockholders shall have performed all of its covenants and their obligations hereunder theretofore to be performedhereunder, and to each of the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(a) hereof; all material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433 under the Act; if the Company has elected to rely upon Rule 462(b) under the Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m., Washington, D.C. time, on prior to the date execution of this Agreement, or at such later date as shall be consented to in writing by the Underwriters; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding proceedings for that purpose shall have been initiated or, to the Knowledge of the Company or any Underwriter, threatened by the Commission; no stop order suspending or preventing any request of the use of Commission for additional information (to be included in the Registration Statement, any Preliminary Prospectus, any Pricing Prospectus, the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission otherwise) shall have been complied with to your the satisfaction of Underwriters’ Counsel; the FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements; and no amendment to the Registration Statement, any Preliminary Prospectus, any Pricing Prospectus, or the Prospectus to which the Underwriters or Underwriters’ Counsel shall have reasonably objected, after having received reasonable satisfaction;notice of a proposal to file the same, shall have been filed.
(b) Xxxxx Xxxxx L.L.P.All corporate proceedings and other legal matters in connection with this Agreement, counsel for the Underwritersform of Registration Statement, any Preliminary Prospectus, any Pricing Prospectus, and the Prospectus and the registration, authorization, issue, sale and delivery of the Shares, shall have furnished to you such written opinion or opinions, dated such Time of Delivery, in form and substance been reasonably satisfactory to you, with respect to such matters as you may reasonably requestUnderwriters’ Counsel, and such counsel shall have received been furnished with such papers and information as they may reasonably request have requested to enable them to pass upon such matters;the matters referred to in this Section 7.
(c) Xxxxxx & Xxxxxx L.L.P., counsel for the Company, shall have furnished to you their written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex II.
(d) Xxxxxxxx X. Xxxxx, General Counsel and Corporate Secretary of the Company, shall have furnished to you his written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex III.
(e) Xxxx Xxxxxxxxxx & Xxxxxxxxx LLP, special Indiana counsel for the Company, shall have furnished to you their written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex IV.
(f) Xxxxxx LLP, counsel for each of the Selling Stockholders, as indicated in Schedule IIA hereto, shall have furnished to you their written opinion with respect to each of the Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex V.
(g) Such local counsel as you shall reasonably require shall have furnished to you their written opinion with respect to each of the foreign Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex VI.
(h) On the date of the Prospectus at a time prior Subsequent to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date and delivery of this Agreement and also at each Time of Delivery, UHY, LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) On the date of the Prospectus at a time prior to the execution of this AgreementFirst Closing Date, at 9:30 a.m., New York City time, and on the effective date of any post-effective amendment to Option Closing Date, as the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Deliverycase may be, Flackman Xxxxxxx & Xxxxxx, P.A. shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) Neither the Company nor the Subsidiaries shall have sustained since the date of the latest audited financial statements included in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, other than as set forth or contemplated in the Pricing Prospectus and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or the Subsidiaries or occurred any change, or any development involving a prospective change, in or affecting the general affairs, managementcondition, financial positionor otherwise, stockholders’ equity or results of in the earnings, business or operations of the Company and the SubsidiariesCompany, other than taken as a whole, from that set forth or contemplated in the Pricing ProspectusDisclosure Package that, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of either of the Representatives so material Representatives, could reasonably be expected to result in a Material Adverse Effect and adverse as to make it that makes it, in the reasonable judgment of either of the Representatives, impracticable or inadvisable to proceed with the public offering or the delivery of market the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Pricing Disclosure Package.
(d) At the First Closing Date and on the Option Closing Date, as the case may be, the Underwriters shall have received from Johnson, Pope, Xxxxx, Xxxxxx & Xxxxx, LLP counsel for the Company (“Company Counsel”), a signed opinion dated as of such Closing Date, reasonably satisfactory to Underwriters’ Counsel, in the form and substance of Exhibit B annexed hereto, including a signed negative assurance statement dated as of such Closing Date, reasonably satisfactory to Underwriters’ Counsel, in the form and substance reflected in Exhibit B. Such opinion shall include a legal opinion regarding the sale of the Direct Shares, including compliance with applicable securities laws, provided that such legal opinion may be a “pass-through” opinion, reasonably satisfactory to Underwriters’ Counsel, provided to Johnson, Pope, Xxxxx, Xxxxxx & Xxxxx, LLP.
(e) At the First Closing Date, and on the Option Closing Date, as the case may be, the Underwriters shall have received from Underwriters’ Counsel a signed opinion dated as of such Closing Date in a form and substance reasonably satisfactory to the Underwriters.
(f) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Xxxx & Company, P.A., independent public accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” with respect to the financial statements and certain financial information contained in the Registration Statement, any Preliminary Prospectus, any Pricing Prospectus, and the Prospectus; provided, however, that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than three business days before the Closing Date.
(g) The Underwriters shall have received on the First Closing Date and on the Option Closing Date, as the case may be, a certificate of the Company, dated the First Closing Date or the Option Closing Date, as the case may be, signed by the Chief Executive Officer and Chief Financial Officer of the Company, respectively, to the effect that, and the Representatives shall be satisfied that:
(i) The representations and warranties of the Company, respectively, in this Agreement are true and correct, as if made on and as of the First Closing Date or the Option Closing Date, as the case may be, and the Company has complied with all the agreements and satisfied all the conditions in this Agreement on its part to be performed or satisfied at or prior to the First Closing Date or the Option Closing Date, as the case may be;
(kii) On When the Registration Statement became effective and at all times subsequent thereto up to the delivery of such certificate, the Registration Statement, the Pricing Prospectus and the Prospectus, and any amendments or after supplements thereto, contained all material information required to be included therein by the Applicable TimeAct and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Act and the applicable Rules and Regulations thereunder, the Registration Statement, any Preliminary Prospectus, any Pricing Prospectus, and the Prospectus, and any amendments or supplements thereto, did not and does not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made (except with respect to the Registration Statement), not misleading; and, since the effective date of the Registration Statement, there shall has occurred no event required to be set forth in an amended or supplemented Prospectus which has not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the NYSEbeen so set forth; (ii) a suspension or material limitation in trading in the Company’s securities on the NYSE; and
(iii) a general moratorium on commercial banking activities declared by either Federal or New York or Texas State authorities or a material disruption in commercial banking or securities settlement or clearance services Subsequent to the respective dates as of which information is given in the United StatesRegistration Statement, any Preliminary Prospectus, any Pricing Prospectus, and the Prospectus, there has not been or occurred, as the case may be: (A) any Material Adverse Effect; (ivB) any transaction that is material to the outbreak Company and its Subsidiaries considered as a whole, except transactions entered into in the ordinary course of business; (C) any obligation, direct or escalation of hostilities involving contingent, that is material to the United States or the declaration Company and its Subsidiaries considered as a whole, incurred by the United States Company or its subsidiaries, except obligations incurred in the ordinary course of a national emergency or war or business; (vD) the occurrence of any other calamity or crisis or any change in financial, political the capital stock or economic conditions increase in outstanding indebtedness of the United States Company or elsewhere, if any of its Subsidiaries that is material to the effect Company and its Subsidiaries considered as a whole; (E) any dividend or distribution of any such event specified in clause (iv) kind declared, paid or made on the capital stock of the Company or any of its Subsidiaries; or (vF) in any loss or damage (whether or not insured) to the judgment property of the Representatives makes it impracticable Company or inadvisable to proceed with the public offering any of its Subsidiaries which has been sustained or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus;will have been sustained which has a Material Adverse Effect.
(l) The Shares to be sold at such Time of Delivery shall have been duly admitted for trading and quotation on the NYSE;
(mh) The Company shall have obtained and delivered to the Underwriters executed copies of a lock-up agreement from each of its directors and executive officersan agreement, the Selling Stockholders and each other stockholder identified on Schedule IV hereto, substantially in the form of Exhibit A attached as Annex I hereto;, from each officer and director of the Company and each owner of the Company’s outstanding stock listed on Schedule C hereto. All of the certificates representing the Shares shall have been tendered for delivery in accordance with the terms and provisions of this Agreement.
(ni) The Shares shall be listed on the Nasdaq Capital Market, subject only to official notice of issuance.
(j) The Company shall have complied with the provisions of Section 5(c) hereof this Agreement with respect to the furnishing of prospectuses on the New York Business Day next succeeding the date of this Agreement; andProspectuses.
(ok) The Company On or before each of the First Closing Date and the Selling Stockholders Option Closing Date, as the case may be, the Underwriters and Underwriters’ Counsel shall have furnished or caused received such information, documents and opinions as they may reasonably require for the purposes of enabling them to be furnished to you at such Time of Delivery certificates of officers pass upon the issuance and sale of the Company and of the Selling StockholdersShares as contemplated herein, respectively, satisfactory or in order to you as to evidence the accuracy of any of the representations and warranties warranties, or the satisfaction of any of the Company and the Selling Stockholders, respectivelyconditions or agreements, herein at and as of such Time of Delivery, as to the performance by the Company and the Selling Stockholders of all of their respective obligations hereunder to be performed at or prior to such Time of Delivery, and the Company shall have furnished or caused to be furnished certificates as to the matters set forth in subsections (a) of this Section and as to such other matters as you may reasonably requestcontained.
(pl) The Company shall have furnished or caused sold all the Direct Shares to investors with funds being held in escrow pending this closing. If any condition specified in this Section 7 is not satisfied when and as required to be furnished to you at such Time of Delivery a certificate of satisfied, this Agreement may be terminated by the Executive Vice President, Chief Financial Officer and Treasurer Underwriters by written notice to the effect that:
(i) He is familiar Company at any time on or prior to the First Closing Date and, with respect to the internal accounting records Option Shares, at any time prior to the Option Closing Date, which termination shall be without liability on the part of the Company.
(ii) He has reviewed the “Recent Developments” section contained in both the Preliminary Prospectus and the Prospectus. The information presented in such Recent Developments section (A) has been prepared in good faith and based upon assumptions that he believes are reasonable and consistent with the operations of the Company and (B) is a fair estimate in all material respects of the Company’s total revenues and net income any party to any other party, except for the three months ended June 30, 2011 and has been derived from the Company’s accounting and/or financial recordsexpenses described in Section 11 of this Agreement.
Appears in 2 contracts
Sources: Underwriting and Advisory Agreement (CUI Global, Inc.), Underwriting Agreement (CUI Global, Inc.)
Conditions of Underwriters’ Obligations. The several obligations of the Underwriters hereunderto purchase and pay for the Firm Shares and the Additional Shares, as to the Shares to be delivered at each Time of Deliveryprovided herein, shall be subject, in their discretion, subject to the condition that all accuracy of the representations and warranties and other statements of the Company and of the Selling Stockholders herein are, at and as of such Time of Delivery, true and correct, the condition that the Company and the Selling Stockholders herein contained, as of the date hereof and as of the Closing Date (for purposes of this Section 8, “Closing Date” shall have performed refer to the Closing Date for the Firm Shares and for the Selling Stockholders any Additional Closing Date, if different, for the Additional Shares), to the performance by the Company of all of its and their obligations hereunder theretofore to be performedhereunder, and to each of the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in a timely fashion in accordance with Section 5(a4(a) hereof; all material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433 under the Act; if the Company has elected to rely upon Rule 462(b) under the Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m., Washington, D.C. time, on the date of this Agreement; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued post-effective amendment thereto, and no proceeding for that purpose shall have been initiated or threatened by the Commission; no stop order suspending or preventing the use of the Prospectus or any Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus, shall have been issued by the Commission and no proceedings therefor shall have been initiated or or, threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your the Lead Managers’ reasonable satisfaction;; if the Company has elected to rely on Rule 462(b) under the Securities Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m. (Washington, D.C. time) on the date of this Agreement or at such later time and date as shall have been consented to by the Lead Managers in writing; and all necessary regulatory or stock exchange approvals shall have been received.
(b) Xxxxx Xxxxx At the Closing Date the Lead Managers, on behalf of the Underwriters, shall have received the written opinion of Bxxxx Bxxxx L.L.P., counsel for the Company, dated the Closing Date and addressed to the Underwriters, in the form of Annex I hereto.
(c) At the Closing Date the Lead Managers, on behalf of the Underwriters, shall have furnished to you such received the written opinion or opinionsof Paul, Hastings, Jxxxxxxx & Wxxxxx LLP, counsel for the Company, dated such Time the Closing Date and addressed to the Underwriters, in the form of DeliveryAnnex II hereto.
(d) At the Closing Date the Lead Managers, on behalf of the Underwriters, shall have received the written opinion of Pxxxxx Bxxxx LLP., counsel for Royal Street, dated the Closing Date and addressed to the Underwriters, in the form of Annex III hereto.
(e) At the Closing Date, the Lead Managers, on behalf of the Underwriters, shall have received the written opinion of Vxxxxx & Exxxxx LLP, counsel for each of the Selling Stockholders other than M/C Venture Partners, et al, Madison Dearborn Capital Partners IV, L.P. and TA Associates, et al, each dated the Closing Date, addressed to the Underwriters, in the form of Annex IV.
(f) At the Closing Date, the Lead Managers, on behalf of the Underwriters, shall have received the written opinion of Mayer, Brown, Rxxx & Maw LLP, counsel for M/C Venture Partners, each dated the Closing Date, addressed to the Underwriters, in the form of Annex V.
(g) At the Closing Date, the Lead Managers, on behalf of the Underwriters, shall have received the written opinion of Gxxxxxx Procter LLP, counsel for Madison Dearborn Capital Partners IV, L.P. and TA Associates, et al, each dated the Closing Date, addressed to the Underwriters, in the form of Annex VI.
(h) At the Closing Date, the Lead Managers, on behalf of the Underwriters, shall have received the written opinion of Underwriters’ Counsel, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to youthe Lead Managers, with respect to the issuance and sale of the Shares, the Registration Statement, the Pricing Disclosure Package, the Prospectus and such other matters as you the Lead Managers may reasonably requestrequire, and such counsel the Company shall have received furnished to Underwriters’ Counsel such papers and information documents as they may reasonably request to enable for the purpose of enabling them to pass upon such matters;.
(ci) Xxxxxx At the Closing Date the Lead Managers, on behalf of the Underwriters, shall have received a certificate of the Chief Executive Officer and Chief Financial Officer of the Company, dated the Closing Date, in the form of Annex VII hereto.
(j) At the time this Agreement is executed and at the Closing Date, the Lead Managers shall have received a comfort letter, from Deloitte & Xxxxxx L.L.P.Touche LLP, counsel independent public accountant for the Company, shall have furnished to you their written opiniondated, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex II.
(d) Xxxxxxxx X. Xxxxx, General Counsel and Corporate Secretary of the Company, shall have furnished to you his written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex III.
(e) Xxxx Xxxxxxxxxx & Xxxxxxxxx LLP, special Indiana counsel for the Company, shall have furnished to you their written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex IV.
(f) Xxxxxx LLP, counsel for each of the Selling Stockholdersrespectively, as indicated in Schedule IIA hereto, shall have furnished to you their written opinion with respect to each of the Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex V.
(g) Such local counsel as you shall reasonably require shall have furnished to you their written opinion with respect to each of the foreign Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex VI.
(h) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, UHY, LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) On the date as of the Prospectus at a time prior Closing Date, addressed to the execution Underwriters and in the form of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, Flackman Xxxxxxx & Xxxxxx, P.A. shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;Annex VIII.
(i) Neither the Company Company, the Subsidiaries, nor to the Subsidiaries Company’s knowledge after due inquiry, Royal Street shall have sustained sustained, since the date of the latest audited financial statements included in the Pricing Prospectus Prospectus, any loss or interference with its business or properties from fire, explosion, flood flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or court any legal or governmental action, order or decreeproceeding, other than as set forth or contemplated in the Pricing Prospectus (exclusive of any supplement thereto); and (ii) since subsequent to the respective dates as of which information is given in the Registration Statement (exclusive of any amendment thereto subsequent to the date hereof) or the Pricing Prospectus (exclusive of any supplement thereto), there shall not have been any change in the capital stock or long-term debt or material increase in the short-term debt of the Company or the Subsidiaries any Subsidiary or any change, change or any development involving a prospective change, change in or affecting the general affairs, managementbusiness, financial positioncondition, stockholders’ equity or results of operations operations, properties or prospects of the Company Company, Royal Street and the Subsidiaries, other than individually or taken as set forth or contemplated in the Pricing Prospectusa whole, the effect of which, in any such case described in clause (i) or (ii)above, is is, in the judgment of the Representatives Lead Managers, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery Offering on the terms and in the manner contemplated in the Pricing Prospectus;Prospectus (exclusive of any such supplement).
(kl) On or after the Applicable Time, there (i) no downgrading shall not have occurred in the rating accorded the Company’s debt securities or the Company’s financial strength or claims paying ability by any “nationally recognized statistical rating organization”, as such term is defined by the Commission for purposes of Rule 436(g)(2) under the Securities Act, and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the following: (i) a suspension Company’s debt securities or material limitation in trading in securities generally on the NYSE; (ii) a suspension or material limitation in trading in the Company’s securities on the NYSE; (iii) a general moratorium on commercial banking activities declared by either Federal financial strength or New York or Texas State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus;
(l) The Shares to be sold at such Time of Delivery shall have been duly admitted for trading and quotation on the NYSE;claims paying ability.
(m) The Company Lead Managers shall have obtained and delivered to the Underwriters received a duly executed copies of a lock-up agreement from each person who is a director or officer of its directors and executive officersthe Company, the each Selling Stockholders Stockholder and each other stockholder identified shareholder and other person or entity listed on Schedule IV hereto, in each case substantially in the form attached hereto as Annex I hereto;IX.
(n) The Company At the Closing Date, the Shares shall have complied with been approved for listing upon notice of issuance on the provisions of Section 5(cNYSE.
(o) hereof Prior to or by the Closing Date, the NASD shall have confirmed that it has not raised any objection with respect to the furnishing fairness and reasonableness of prospectuses on the New York Business Day next succeeding underwriting terms and arrangements for the date of this Agreement; andOffering.
(op) The Company and At the Selling Stockholders Closing Date, you shall have furnished or caused to be furnished to you at such Time received a certificate of Delivery certificates of officers of the Company and an authorized representative of the Selling Stockholders, respectivelydated the Closing Date, satisfactory to you as to the accuracy of effect that the representations and warranties of the Company Selling Stockholders set forth in Section 2 hereof are accurate and the Selling Stockholders, respectively, herein at and as that each of such Time of Delivery, as to the performance by the Company and the Selling Stockholders of has complied with all of their respective obligations hereunder agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to such Time of Delivery, and the Company shall have furnished or caused to be furnished certificates as to the matters set forth in subsections (a) of this Section and as to such other matters as you may reasonably requestClosing Date.
(pq) The Company shall have furnished the Underwriters and Underwriters’ Counsel with such other certificates, opinions or caused to be other documents as they may have reasonably requested. If any of the conditions specified in this Section 8 shall not have been fulfilled when and as required by this Agreement, or if any of the certificates, opinions, written statements or letters furnished to you at such Time of Delivery a certificate or to Underwriters’ Counsel pursuant to this Section 8 shall not be satisfactory in form and substance to the Lead Managers and to Underwriters’ Counsel, all obligations of the Executive Vice PresidentUnderwriters hereunder may be cancelled by the Lead Managers at, Chief Financial Officer or at any time prior to, the Closing Date and Treasurer the obligations of the Underwriters to purchase the Additional Shares may be cancelled by the Lead Managers at, or at any time prior to, the Additional Closing Date. Notice of such cancellation shall be given to the effect that:
(i) He is familiar with the internal accounting records of the CompanyCompany in writing or by telephone. Any such telephone notice shall be confirmed promptly thereafter in writing.
(ii) He has reviewed the “Recent Developments” section contained in both the Preliminary Prospectus and the Prospectus. The information presented in such Recent Developments section (A) has been prepared in good faith and based upon assumptions that he believes are reasonable and consistent with the operations of the Company and (B) is a fair estimate in all material respects of the Company’s total revenues and net income for the three months ended June 30, 2011 and has been derived from the Company’s accounting and/or financial records.
Appears in 2 contracts
Sources: Underwriting Agreement (Metropcs Communications Inc), Underwriting Agreement (Metropcs Communications Inc)
Conditions of Underwriters’ Obligations. The several obligations of the Underwriters hereunder, as to purchase and pay for any issue of Underwriters’ Securities under any Terms Agreement are subject to the Shares to be delivered at each Time of Delivery, shall be subject, in their discretion, to the condition that all representations and warranties and other statements of the Company and of the Selling Stockholders herein are, at and as of such Time of Delivery, true and correct, the condition that the Company and the Selling Stockholders shall have performed all of its and their obligations hereunder theretofore to be performed, and the following additional conditions:
(a) That, at the time of purchase, you shall receive the signed opinions of Axxxxxxxx Xxxxxxxx LLP, counsel for the Company, and of the General Counsel of the Company, or of an Associate General Counsel, in form satisfactory to your counsel, addressed to the Underwriters and dated the time of purchase (with conformed or reproduced copies thereof for each of the other Underwriters), as indicated below.
(i) The Prospectus shall opinion of Axxxxxxxx Xxxxxxxx LLP is to state in substance that:
(A) the Company has been duly incorporated and is validly existing and in good standing under the laws of Delaware, and has all power and authority necessary to own its properties and conduct the businesses in which it is engaged;
(B) this Agreement and the Terms Agreement have been duly authorized, executed and delivered by the Company and are valid and binding agreements of the Company, except as rights to indemnification provided herein may be unenforceable under applicable laws;
(C) the Delayed Delivery Contracts, if any, have been duly authorized, executed and delivered by the Company and (assuming that they have been duly authorized, executed and delivered by the purchasers thereunder) are valid and binding agreements of the Company;
(D) the Indenture has been duly authorized, executed and delivered by the Company and is a valid instrument legally binding upon the Company in accordance with its terms; the Purchased Securities have been duly authorized; the Underwriters’ Securities have been duly authorized and executed (and assuming the facsimile seal of the Company has been affixed thereto or imprinted thereon and they have been duly authenticated by the Trustee, in accordance with the Indenture, which assumptions such counsel need not verify by an inspection of the Underwriters’ Securities) have been duly issued and constitute legal, valid and binding obligations of the Company; the Contract Securities have been duly authorized and executed (and assuming that the facsimile seal of the Company will have been affixed thereto or imprinted thereon and that they will have been duly authenticated by the Trustee, as aforesaid), when issued and delivered against payment as provided in the Delayed Delivery Contracts, will have been duly issued and will constitute legal, valid and binding obligations of the Company; and the Purchased Securities are, and the Contract Securities will be, entitled to the benefits provided by the Indenture; provided, however, that (a) the enforceability of the Indenture, the Underwriters’ Securities and the Contract Securities may be limited by bankruptcy, insolvency or similar laws affecting the enforcement of creditors’ rights generally and (b) rights of acceleration and the availability of equitable remedies thereunder may be limited by equitable principles of general applicability;
(E) the Purchased Securities, the Delayed Delivery Contracts and the Indenture conform in all material respects as to legal matters with the statements concerning them in the Prospectus;
(F) the documents incorporated by reference in the Registration Statement (the “Incorporated Documents”) (other than the financial statements, related schedules and other financial and statistical data included therein, as to which such counsel need express no opinion), when they were filed with the Commission pursuant Commission, complied as to Rule 424(bform in all material respects with the requirements of the Exchange Act;
(G) under the Registration Statement and the Prospectus (other than the financial statements, related schedules and other financial and statistical data included therein, and the Trustee’s Statement of Eligibility on Form T-1, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act within and the applicable time period prescribed for such filing Indenture complies in all material respects with the Trust Indenture Act of 1939, as amended;
(H) no approval by any governmental or regulatory authority is required in connection with the rules and regulations consummation of the transactions contemplated by this Agreement other than registration of the Purchased Securities under the Act and in accordance with Section 5(a) hereof; all material required to be filed by qualification of the Company pursuant to Rule 433(d) Indenture under the Trust Indenture Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433 of 1939, as amended, and any necessary qualification under the Actsecurities or blue sky laws of the various jurisdictions in which the Purchased Securities are being offered; if and
(I) the Company has elected to rely upon Rule 462(b) Registration Statement is effective under the Act, and no proceedings for a stop order are pending or, to the Rule 462(b) best of such counsel’s knowledge, threatened under the Act. In addition, such counsel shall state that such counsel has participated in the preparation of the Registration Statement shall have become effective by 10:00 p.m.and the Prospectus and although such counsel is not passing upon and does not assume any responsibility for the accuracy, Washington, D.C. timecompleteness or fairness of the statements contained in the Registration Statement or the Prospectus (except as to the matters referred to under subheadings (E) and (G) of this subsection (a)), on the basis of the foregoing (relying as to materiality to a large extent upon the opinions of officers and other representatives of the Company), no facts have come to the attention of such counsel which lead it to believe that any part of the Registration Statement, when such part became effective, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading; or that the Prospectus, at the time the Terms Agreement was entered into contained, or at the time of purchase contains, any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (it being understood that such counsel need express no opinion with respect to the financial statements, related schedules and other financial and statistical data included in the Registration Statement or the Prospectus).
(ii) The opinion of the General Counsel of the Company, or of an Associate General Counsel, is to state in substance that:
(A) there are no contracts or other documents required to be included among the Incorporated Documents or filed as exhibits to the Incorporated Documents or the Registration Statement other than those incorporated by reference or filed as required;
(B) to the best of such counsel’s knowledge, there is no litigation or any governmental proceeding pending or threatened against the Company or any of its subsidiaries which would affect the transactions contemplated by this Agreement or is required to be disclosed in the Registration Statement or the Prospectus which is not disclosed and correctly summarized therein; and
(C) no part of the Registration Statement, when such part became effective, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading; and the Prospectus, at the time the Terms Agreement was entered into did not contain, and at the time of purchase does not contain, any untrue statement of a material fact and did not and does not omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (it being understood that such counsel need express no opinion with respect to the financial statements, related schedules and other financial and statistical data included in the Registration Statement or the Prospectus).
(b) That, at the time of purchase, the Underwriters shall receive the favorable opinion of their counsel, dated the time of purchase, as to the matters referred to in subheadings (B), (C), (D), (E) and (G) of subsection (a)(i) of this Section 4. In addition, such counsel shall state that (i) such counsel has participated in conferences with officers and other representatives of the Company, representatives of the independent public accounting firm for the Company, representatives of counsel for the Company and representatives of the Underwriters at which the contents of the Registration Statement and the Prospectus, the documents to be specified on a schedule to such opinion (the “General Disclosure Documents”) and related matters were discussed, (ii) although such counsel has made certain inquiries and investigations in connection with the preparation of the Registration Statement, the Prospectus dated October 13, 2005 as supplemented by the Prospectus Supplement (including any preliminary Prospectus Supplement) and the General Disclosure Documents, the limitations inherent in the role of underwriters’ counsel are such that such counsel cannot and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in such documents, except as provided under subheading (E) of subsection (a)(i) of this Section 4 and (iii) subject to the foregoing, no facts have come to such counsel’s attention that lead such counsel to believe that (x) the Registration Statement, including the documents incorporated therein by reference, at the time the Registration Statement became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (y) the Prospectus dated October 13, 2005 as supplemented by the Prospectus Supplement (including any preliminary Prospectus Supplement), as of its date or as of the date of this such opinion, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or (z) the General Disclosure Documents, taken together, as of the time of execution of the Terms Agreement; , contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (it being understood that such counsel need express no comment with respect to the financial statements or other financial data that is included in or omitted from the Registration Statement, the Prospectus dated October 13, 2005 as supplemented by the Prospectus Supplement (including any preliminary Prospectus Supplement) or the General Disclosure Documents).
(c) That, at the time of the execution of the Terms Agreement and at the time of purchase, you shall receive a signed letter from PricewaterhouseCoopers LLP, independent public accountants, dated the time of the execution of the Terms Agreement or the time of purchase, as applicable, each substantially in the form heretofore furnished to you and in substance satisfactory to you, addressed to the Underwriters (with conformed or reproduced copies thereof for each of the other Underwriters) with respect to the financial statements and certain financial information contained in or incorporated by reference into the Registration Statement and the Prospectus.
(d) That (i) prior to the time of purchase, no stop order suspending with respect to the effectiveness of the Registration Statement or any part thereof shall have been issued and under the Act or proceedings therefor pending or threatened; (ii) no proceeding for that purpose shall have been initiated or threatened by the Commission; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with Registration Statement, when such part became effective, contained any untrue statement of a material fact or omitted to your reasonable satisfaction;
state a material fact required to be stated therein or necessary to make the statements therein not misleading; and (biii) Xxxxx Xxxxx L.L.P.the Prospectus, counsel for at the Underwriterstime the Terms Agreement was entered into did not contain, shall have furnished and at the time of purchase does not contain, any untrue statement of a material fact, and did not and does not omit to you such written opinion or opinions, dated such Time of Deliverystate any material fact necessary in order to make the statements therein, in form the light of the circumstances under which they were made, not misleading, other than any statement contained in, or any matter omitted from, the Registration Statement or the Prospectus in reliance upon, and substance reasonably satisfactory in conformity with, information furnished in writing by or on behalf of any Underwriter through you to you, the Company expressly for use with respect reference to such matters as you may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;
(c) Xxxxxx & Xxxxxx L.L.P., counsel for Underwriter in the Company, shall have furnished to you their written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to Registration Statement or the effect set forth on Annex II.
(d) Xxxxxxxx X. Xxxxx, General Counsel and Corporate Secretary of the Company, shall have furnished to you his written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex IIIProspectus.
(e) Xxxx Xxxxxxxxxx & Xxxxxxxxx LLPThat, special Indiana counsel for between the Company, shall have furnished to you their written opinion, dated such Time time of Deliveryexecution of the Terms Agreement and the time of purchase, in form and substance satisfactory to you, to the effect set forth on Annex IV.
(f) Xxxxxx LLP, counsel for each of the Selling Stockholders, as indicated in Schedule IIA hereto, shall have furnished to you their written your opinion with respect to each of the Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex V.
(g) Such local counsel as you shall reasonably require shall have furnished to you their written opinion with respect to each of the foreign Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex VI.
(h) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, UHY, LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, Flackman Xxxxxxx & Xxxxxx, P.A. shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) Neither the Company nor the Subsidiaries shall have sustained since the date of the latest audited financial statements included in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, other than as set forth or contemplated in the Pricing Prospectus and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any no material adverse change in the capital stock or long-term debt of the Company or the Subsidiaries or any change, or any development involving a prospective change, material adverse change in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations condition of the Company and the Subsidiariesits subsidiaries, taken as a whole (financial or otherwise), shall have taken place (other than as set forth referred to in or contemplated by the Registration Statement or the Prospectus).
(f) That the Company shall perform such of its obligations under this Agreement which are to be performed by the terms hereof at or before the time of purchase.
(g) That the Company shall, at the time of purchase, deliver to you (with reproduced or conformed copies thereof for each of the other Underwriters) a signed certificate of two of its executive officers stating that, between the time of execution of the Terms Agreement and the time of purchase, no material adverse change or any development involving a prospective material adverse change in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Pricing Prospectus;
(k) On or after the Applicable Time, there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the NYSE; (ii) a suspension or material limitation in trading in the Company’s securities on the NYSE; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Texas State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus;
(l) The Shares to be sold at such Time of Delivery shall have been duly admitted for trading and quotation on the NYSE;
(m) The Company shall have obtained and delivered to the Underwriters executed copies of a lock-up agreement from each of its directors and executive officers, the Selling Stockholders and each other stockholder identified on Schedule IV hereto, in the form attached as Annex I hereto;
(n) The Company shall have complied with the provisions of Section 5(c) hereof with respect to the furnishing of prospectuses on the New York Business Day next succeeding the date of this Agreement; and
(o) The Company and the Selling Stockholders shall have furnished or caused to be furnished to you at such Time of Delivery certificates of officers condition of the Company and of its subsidiaries, taken as a whole (financial or otherwise), shall have taken place (other than as referred to in or contemplated by the Selling Stockholders, respectively, satisfactory to you as to the accuracy of the representations and warranties of the Company Registration Statement and the Selling Stockholders, respectively, herein at Prospectus) and as of such Time of Delivery, as to the performance by the Company and the Selling Stockholders of all of their respective obligations hereunder to be performed at or prior to such Time of Delivery, and the Company shall have furnished or caused to be furnished certificates as to also covering the matters set forth in subsections (ad) and (f) of this Section and as to such other matters as you may reasonably request4.
(ph) The That the Company shall have furnished or caused to be furnished to you at such Time accepted Delayed Delivery Contracts in any case where sales of Delivery a certificate of Contract Securities arranged by the Executive Vice President, Chief Financial Officer and Treasurer to the effect that:
(i) He is familiar with the internal accounting records of Underwriters have been approved by the Company.
(ii) He has reviewed the “Recent Developments” section contained in both the Preliminary Prospectus and the Prospectus. The information presented in such Recent Developments section (A) has been prepared in good faith and based upon assumptions that he believes are reasonable and consistent with the operations of the Company and (B) is a fair estimate in all material respects of the Company’s total revenues and net income for the three months ended June 30, 2011 and has been derived from the Company’s accounting and/or financial records.
Appears in 2 contracts
Sources: Underwriting Agreement (Anheuser-Busch Companies, Inc.), Underwriting Agreement (Anheuser-Busch Companies, Inc.)
Conditions of Underwriters’ Obligations. The obligations of the Underwriters hereunderto purchase and pay for the Firm Shares and the Additional Shares, as to the Shares to be delivered at each Time of Deliveryprovided herein, shall be subjectsubject to the accuracy of the representations and warranties of the Company herein contained, in their discretionas of the date hereof and as of the Closing Date (for purposes of this Section 6 "Closing Date" shall refer to the Closing Date for the Firm Shares and any Additional Closing Date, if different, for the Additional Shares), to the condition that all representations and warranties and other absence from any certificates, opinions, written statements or letters furnished to you or to Pillsbury Madison & Sutro LLP ("Underwriters' Counsel") pursuant to this Section 6 of any misstatement or omission, to the performance by the Company and of the Selling Stockholders herein are, at and as of such Time of Delivery, true and correct, the condition that the Company and the Selling Stockholders shall have performed all of its and their obligations hereunder theretofore to be performedhereunder, and to the following additional conditions:
(a) The Registration Statement shall have become effective and all necessary foreign regulatory or stock exchange approval has been received not later than 5:30 P.M., New York time, on the date of this Agreement, or at such later time and date as shall have been consented to in writing by you; if the Company shall have elected to rely upon Rule 430A or Rule 434 of the Regulations, the U.S. Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in a timely fashion in accordance with Section 5(a4(a) hereof; all material required and, at or prior to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433 under the Act; if the Company has elected to rely upon Rule 462(b) under the Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m., Washington, D.C. time, on the date of this Agreement; Closing Date no stop order suspending the effectiveness of the Registration Statement or any part post-effective amendment thereof shall have been issued and no proceeding for that purpose proceedings therefor shall have been initiated or threatened by the Commission; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction;.
(b) Xxxxx Xxxxx L.L.P.At the Closing Date you shall have received the opinion of Paul, Hastings, Janoxxxx & Xalkxx XXX, United States counsel for the Company, dated the Closing Date and addressed to the Underwriters, satisfactory to Pillsbury Madison & Sutro LLP, counsel for the Underwriters, shall have furnished to you together with signed or reproduced copies of such written opinion or opinions, dated such Time of Delivery, in form and substance reasonably satisfactory to you, with respect to such matters as you may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;
(c) Xxxxxx & Xxxxxx L.L.P., counsel for the Company, shall have furnished to you their written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex II.
(d) Xxxxxxxx X. Xxxxx, General Counsel and Corporate Secretary of the Company, shall have furnished to you his written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex III.
(e) Xxxx Xxxxxxxxxx & Xxxxxxxxx LLP, special Indiana counsel for the Company, shall have furnished to you their written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex IV.
(f) Xxxxxx LLP, counsel for each of the Selling Stockholdersother Underwriters, as indicated in Schedule IIA hereto, shall have furnished to you their written opinion with respect to each of the Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex V.
(g) Such local counsel as you shall reasonably require shall have furnished to you their written opinion with respect to each of the foreign Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex VI.
(h) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, UHY, LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, Flackman Xxxxxxx & Xxxxxx, P.A. shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) Neither the Company nor the Subsidiaries shall have sustained since the date of the latest audited financial statements included in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, other than as set forth or contemplated in the Pricing Prospectus and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or the Subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and the Subsidiaries, other than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Pricing Prospectus;
(k) On or after the Applicable Time, there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the NYSE; (ii) a suspension or material limitation in trading in the Company’s securities on the NYSE; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Texas State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus;
(l) The Shares to be sold at such Time of Delivery shall have been duly admitted for trading and quotation on the NYSE;
(m) The Company shall have obtained and delivered to the Underwriters executed copies of a lock-up agreement from each of its directors and executive officers, the Selling Stockholders and each other stockholder identified on Schedule IV hereto, in the form attached as Annex I hereto;
(n) The Company shall have complied with the provisions of Section 5(c) hereof with respect to the furnishing of prospectuses on the New York Business Day next succeeding the date of this Agreement; and
(o) The Company and the Selling Stockholders shall have furnished or caused to be furnished to you at such Time of Delivery certificates of officers of the Company and of the Selling Stockholders, respectively, satisfactory to you as to the accuracy of the representations and warranties of the Company and the Selling Stockholders, respectively, herein at and as of such Time of Delivery, as to the performance by the Company and the Selling Stockholders of all of their respective obligations hereunder to be performed at or prior to such Time of Delivery, and the Company shall have furnished or caused to be furnished certificates as to the matters set forth in subsections (a) of this Section and as to such other matters as you may reasonably request.
(p) The Company shall have furnished or caused to be furnished to you at such Time of Delivery a certificate of the Executive Vice President, Chief Financial Officer and Treasurer to the effect that:
(i) He is familiar with the internal accounting records of the Company.
Each U.S. Principal Subsidiary (ii) He has reviewed the “Recent Developments” section contained in both the Preliminary Prospectus and the Prospectus. The information presented in such Recent Developments section (Aas defined below) has been prepared duly incorporated and is validly existing as a corporation in good faith standing under the laws of its jurisdiction of incorporation. Each U.S. Principal Subsidiary is duly qualified and based upon assumptions that he believes are reasonable in good standing as a foreign corporation in each jurisdiction where such U.S. Principal Subsidiary leases or owns real property. Each U.S. Principal Subsidiary has the requisite corporate power and consistent with the operations of the Company and (B) is a fair estimate in all material respects of the Company’s total revenues and net income for the three months ended June 30, 2011 and has been derived from the Company’s accounting and/or financial records.corporate
Appears in 2 contracts
Sources: Underwriting Agreement (Uti Worldwide Inc), Underwriting Agreement (Uti Worldwide Inc)
Conditions of Underwriters’ Obligations. The respective obligations of the several Underwriters hereunder, as hereunder are subject to the Shares to be delivered at each Time accuracy, when made and on the Closing Date, of Delivery, shall be subject, in their discretionthe representations and warranties of the Representing Parties contained herein, to the condition that all representations and warranties and other accuracy of the statements of the Company and Representing Parties made in any certificates pursuant to the provisions hereof, to the performance by the Representing Parties of the Selling Stockholders herein are, at and as of such Time of Delivery, true and correct, the condition that the Company and the Selling Stockholders shall have performed all of its and their respective obligations hereunder theretofore to be performedhereunder, and to each of the following additional terms and conditions:
(a) The Prospectus shall have been filed with Prior to the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(a) hereof; all material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433 under the Act; if the Company has elected to rely upon Rule 462(b) under the ActClosing Date, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m., Washington, D.C. time, on the date of this Agreement; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; no stop order suspending and any request of the Commission for inclusion of additional information in the Registration Statement or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission otherwise shall have been complied with to your the reasonable satisfaction;satisfaction of the Representative[s]; the Depositor shall have filed the Prospectus and the Preliminary Prospectus and the Final Terms FWP with the Commission pursuant to Rule 424(b), Rule 424(h) and Rule 433 of the Securities Act, as applicable, within the time period prescribed by such rules; and the Depositor will file the certifications and the Transaction Documents necessary to satisfy the conditions for the offering of the Notes under Form SF-3 in the manner and within the time required by the General Instructions to Form SF-3.
(b) Xxxxx Xxxxx L.L.P.All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Securities, each of the Transaction Documents, the Registration Statement and the Prospectus, and all other legal matters relating to such agreements and the transactions contemplated hereby and thereby shall be satisfactory in all material respects to counsel for the Underwriters, and the Representing Parties shall have furnished to you such written opinion or opinions, dated such Time of Delivery, in form and substance reasonably satisfactory to you, with respect to such matters as you may reasonably request, and such counsel shall have received such papers all documents and information as that they may reasonably request to enable them to pass upon such matters;.
(c) Xxxxxx & Xxxxxx L.L.P.The Trust Agreement shall have been duly executed and delivered by the Depositor and the Owner Trustee and the Certificates shall have been duly executed and delivered by the Owner Trustee on behalf of the Issuer and duly authenticated by the Owner Trustee.
(d) The Sale and Servicing Agreement shall have been duly executed and delivered by the Depositor, the Bank, as Seller and Servicer, the Issuer and the Indenture Trustee.
(e) The Indenture shall have been duly executed and delivered by the Issuer and the Indenture Trustee and the Notes shall have been duly executed and delivered by the Owner Trustee on behalf of the Issuer and duly authenticated by the Indenture Trustee.
(f) The Receivables Purchase Agreement shall have been duly executed and delivered by the Seller and the Depositor.
(g) The Asset Representations Review Agreement shall have been duly executed and delivered by the Issuer, the Asset Representations Reviewer, the Sponsor and the Servicer.
(h) The Representatives shall have received evidence satisfactory to them and their counsel for that within ten days of the CompanyClosing Date, UCC-1 financing statements required to be filed on or prior to the Closing Date pursuant to the Transaction Documents have been filed.
(i) [ ], [ ] of [United Services Automobile Association], shall have furnished to you their the Representatives his written opinion, addressed to the Representatives and dated such Time the Closing Date, regarding the due organization and power and authority of Deliverythe Bank, the due authorization, execution and delivery by the Bank of the Transaction Documents to which it is a party, no conflicts or violations of its charter or by-laws, contracts or law and other related matters, in form and substance reasonably satisfactory to you, to the effect set forth on Annex IIRepresentative[s] and their counsel.
(dj) Xxxxxxxx X. Xxxxx[ ], General Counsel and Corporate Secretary of special Delaware counsel to the CompanyDepositor, shall have furnished to you his the Representative[s] their written opinion, as counsel to the Depositor, addressed to the Representative[s] and dated such Time the Closing Date, regarding (i) the due organization of Deliverythe Depositor and (ii) other general Delaware law matters with respect to the Depositor, including, without limitation, the due authorization, execution and delivery of the Transaction Documents by the Depositor, in each case, in form and substance reasonably satisfactory to you, to the effect set forth on Annex IIIRepresentative[s] and their counsel.
(ek) Xxxx Xxxxxxxxxx & Xxxxxxxxx LLP[ ], special Indiana Delaware counsel for to the CompanyIssuer, shall have furnished to you the Representative[s] their written opinion, as counsel to the Issuer, addressed to the Representative[s] and dated such Time the Closing Date, regarding (i) the due organization of Deliverythe Issuer, (ii) the enforceability of the Trust Agreement, (iii) other general Delaware law matters with respect to the Issuer, including, without limitation, the due authorization, execution and delivery by the Issuer of the Transaction Documents to which it is a party and the due authorization and issuance of the Certificates, (iv) the perfection of the security interest created by the Sale and Servicing Agreement and (v) the perfection of the security interest created by the Indenture, in each case, in form and substance reasonably satisfactory to youthe Representative[s] and their counsel.
(l) Xxxxx Xxxxx LLP shall have furnished to the Representative[s] (i) their written opinion, addressed to the Representative[s] and dated the Closing Date, regarding enforceability, general corporate matters, the validity of the Notes, the Registration Statement and the Prospectus and (ii) a negative assurance letter concerning the Prospectus and the Time of Sale Information, in each case, in form and substance reasonably satisfactory to the Representative[s] and their counsel.
(m) Xxxxx Xxxxx LLP shall have furnished to the Representative[s] their written opinion, addressed to the Representative[s] and dated the Closing Date, with respect to certain matters relating to the transfer of the Receivables by the Seller to the Purchaser, in form and substance reasonably satisfactory to the Representative[s] and their counsel.
(n) Xxxxx Xxxxx LLP shall have furnished to the Representative[s] their written opinion, addressed to the Representative[s] and dated the Closing Date, to the effect that (i) the Issuer will not be an association (or a publicly traded partnership) taxable as a corporation for federal income tax purposes, (ii) the Notes will be characterized as indebtedness for federal income tax purposes and (iii) the statements set forth on Annex IVin the Preliminary Prospectus and in the Prospectus under the heading “Material Federal Income Tax Consequences”, to the extent that they are statements of law are true and correct in all material respects, in form and substance reasonably satisfactory to the Representative[s] and their counsel.
(fo) Xxxxxx LLPThe Representative[s] shall have received from [ ], counsel for each of the Selling StockholdersUnderwriters, such opinion or opinions, dated the Closing Date, with respect to such matters as indicated in Schedule IIA heretothe Representative[s] may require, and the Bank and the Depositor shall have furnished to such counsel such documents as they reasonably request for enabling them to pass upon such matters.
(p) [ ], counsel to the Owner Trustee, shall have furnished to you the Representative[s] their written opinion with respect opinion, as counsel to each the Owner Trustee, addressed to the Representative[s] and dated the Closing Date, regarding the due organization of the Selling StockholdersOwner Trustee, dated the First Time due authorization, execution and delivery by the Owner Trustee of Deliverythe Trust Agreement, no conflicts or violations of organizational documents, contracts or law and other related matters, in form and substance reasonably satisfactory to youthe Representative[s] and their counsel.
(q) [ ], counsel to the effect set forth in Annex V.
(g) Such local counsel as you shall reasonably require Indenture Trustee, shall have furnished to you the Representative[s] their written opinion with respect opinion, as counsel to each the Indenture Trustee, addressed to the Representative[s] and dated the Closing Date, regarding the due organization of the foreign Selling StockholdersIndenture Trustee, dated the First Time due authorization, execution and delivery by the Indenture Trustee of Deliverythe Transaction Documents to which it is a party, no conflicts or violations of organizational documents, contracts or law and other related matters, in form and substance reasonably satisfactory to you, to the effect set forth in Annex VIRepresentative[s] and their counsel.
(hr) On the date of the Prospectus at a time prior [ ], in-house counsel to the execution of this AgreementAsset Representations Reviewer, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, UHY, LLP shall have furnished to you a letter or lettersthe Representatives his written opinion, as counsel to the Asset Representations Reviewer, addressed to the Representatives and dated the respective dates Closing Date, regarding the due organization of the Asset Representations Reviewer, the due authorization, execution and delivery thereofby the Asset Representations Reviewer of the Asset Representations Review Agreement, no conflicts or violations of organizational documents, contracts or law, the enforceability of the Asset Representations Reviewer Agreement and other related matters, in form and substance reasonably satisfactory to you;the Representatives and their counsel.
(s) The Representative[s] shall have received one or more letters dated the date hereof (the “Procedures Letters”) from a firm of independent nationally recognized certified public accountants acceptable to the Representative[s] verifying the accuracy of such financial and statistical data contained in the Prospectus (including any static pool data included therein pursuant to Item 1105 of Regulation AB under the Securities Act) as the Representative[s] shall deem advisable. In addition, if (1) any amendment or supplement to the Prospectus made after the date hereof contains financial or statistical data or (2) the Depositor files a Form 8-K pursuant to Section 3(a)(xii) herein or in connection with the characteristics of the Receivables, the Representative[s] shall have received a letter dated the Closing Date confirming the Procedures Letters and providing additional comfort on such new data.
(t) The Representative[s] shall have received a certificate, dated the Closing Date, of any of the Chairman of the Board, the President, any Senior Vice President, any Vice President or the chief financial officer of each of the Bank and the Depositor stating that (i) On the date representations and warranties of the Prospectus Bank or the Depositor, as applicable, contained in this Agreement and the Transaction Documents to which it is a party are true and correct on and as of the Closing Date, (ii) the Bank or the Depositor, as applicable, has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder and under such agreements at a time or prior to the execution Closing Date, (iii) no stop order suspending the effectiveness of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent has been issued and no proceedings for that purpose have been instituted or, to the date best of this Agreement and also at each Time of Deliveryhis or her knowledge, Flackman Xxxxxxx & Xxxxxxare contemplated by the Commission, P.A. shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) Neither the Company nor the Subsidiaries shall have sustained since the date of the latest audited financial statements included in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, other than as set forth or contemplated in the Pricing Prospectus and (iiiv) since the respective dates as of which information is given in the Pricing Prospectus [ ], 20[ ], there shall not have has been any no material adverse change in the capital stock financial position or long-term debt results of operations of the Company Bank or the Subsidiaries Depositor, as applicable, or the Issuer or any change, or any development involving including a prospective change, in or affecting the general affairscondition (financial or otherwise), management, financial position, stockholders’ equity or results of operations operations, business or prospects of the Company and Bank or the SubsidiariesDepositor, other than as applicable, or the Issuer except as set forth in or contemplated by the Registration Statement and the Prospectus.
(u) The Representative[s] shall have received letters from the Rating Agencies stating that the Notes have received the ratings set forth in the Pricing ProspectusRatings FWP, such ratings shall not have been rescinded and no public announcement shall have been made by either Rating Agency that the effect rating of which, in the Notes has been placed under review.
(v) Subsequent to the execution and delivery of this Agreement there shall not have occurred any such case described in clause of the following: (i) trading in securities generally on the New York Stock Exchange, the American Stock Exchange or the over-the-counter market shall have been suspended or limited, or minimum prices shall have been established on either of such exchanges or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a general moratorium on commercial banking activities shall have been declared by Federal or New York State authorities, (iii) there shall have been any material disruption in commercial banking securities settlement or clearance services in the United States, (iv) any material adverse change in the financial markets in the United States, any outbreak or escalation of hostilities or a declaration by the United States of a national emergency or war or any other substantial national or international calamity or emergency or any change or development involving a prospective change in national or international political, financial or economic conditions or (ii), is v) any material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Bank or the Depositor, whether or not arising in the ordinary course of business, which materially impairs the investment quality of the Notes, that in the case of clause (iv) or (v) makes it, in the reasonable judgment of a majority in interest of the Representatives so material and adverse as to make it several Underwriters, impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Pricing Prospectus;
(k) On or after the Applicable Time, there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the NYSE; (ii) a suspension or material limitation in trading in the Company’s securities on the NYSE; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Texas State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery Notes on the terms and in the manner contemplated in the Prospectus;.
(lw) The Shares Representative[s] shall have received from the Indenture Trustee, a certificate stating that any information contained in the Statement of Eligibility and Qualification (Form T-1) filed with the Registration Statement, is true, accurate and complete. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be sold at such Time of Delivery shall have been duly admitted for trading and quotation on the NYSE;
(m) The Company shall have obtained and delivered to the Underwriters executed copies of a lock-up agreement from each of its directors and executive officers, the Selling Stockholders and each other stockholder identified on Schedule IV hereto, in the form attached as Annex I hereto;
(n) The Company shall have complied compliance with the provisions of Section 5(c) hereof with respect to the furnishing of prospectuses on the New York Business Day next succeeding the date of this Agreement; and
(o) The Company only if they are in form and the Selling Stockholders shall have furnished or caused to be furnished to you at such Time of Delivery certificates of officers of the Company and of the Selling Stockholders, respectively, substance reasonably satisfactory to you as to the accuracy of the representations and warranties of the Company and the Selling Stockholders, respectively, herein at and as of such Time of Delivery, as to the performance by the Company and the Selling Stockholders of all of their respective obligations hereunder to be performed at or prior to such Time of Delivery, and the Company shall have furnished or caused to be furnished certificates as to the matters set forth in subsections (a) of this Section and as to such other matters as you may reasonably request.
(p) The Company shall have furnished or caused to be furnished to you at such Time of Delivery a certificate of the Executive Vice President, Chief Financial Officer and Treasurer to the effect that:
(i) He is familiar with the internal accounting records of the Company.
(ii) He has reviewed the “Recent Developments” section contained in both the Preliminary Prospectus and the Prospectus. The information presented in such Recent Developments section (A) has been prepared in good faith and based upon assumptions that he believes are reasonable and consistent with the operations of the Company and (B) is a fair estimate in all material respects of the Company’s total revenues and net income counsel for the three months ended June 30, 2011 and has been derived from the Company’s accounting and/or financial recordsUnderwriters.
Appears in 2 contracts
Sources: Underwriting Agreement (Usaa Acceptance LLC), Underwriting Agreement (Usaa Acceptance LLC)
Conditions of Underwriters’ Obligations. The obligations of the --------------------------------------- Underwriters hereunderto purchase and pay for the Firm Shares and the Additional Shares, as to the Shares to be delivered at each Time of Deliveryprovided herein, shall be subject, subject to (i) the accuracy in their discretion, to all material respects of the condition that all representations and warranties and other statements of the Company and herein contained, as of the Selling Stockholders herein are, at date hereof and as of such Time the Closing Date (for purposes of Deliverythis Section 6 "Closing Date" shall refer to the Closing Date for the Firm Shares and any Additional Closing Date, true and correctif different, for the condition that Additional Shares), (ii) the absence from any certificates, opinions, written statements or letters furnished to you or to Underwriters' Counsel pursuant to this Section 6 of any material misstatement or material omission, (iii) the material performance by the Company and the Selling Stockholders shall have performed all of its covenants and their other obligations hereunder theretofore to be performedhereunder, and (iv) the following additional conditions:
(a) The Registration Statement, including any Rule 462(b) Registration Statement, shall have become effective and all necessary approvals of the Nasdaq National Market shall have been received not later than 5:30 P.M., New York time, on the date of this Agreement, or at such later time and date as shall have been consented to in writing by you; if the Company shall have elected to rely upon Rule 430A or Rule 434 of the Regulations, the Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in a timely fashion in accordance with Section 5(a4(a) hereof; all material required and at or prior to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433 under the Act; if the Company has elected to rely upon Rule 462(b) under the ActClosing Date, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m., Washington, D.C. time, on the date of this Agreement; no stop order suspending the effectiveness of the Registration Statement or any part post-effective amendment thereof shall have been issued and no proceeding for that purpose proceedings therefor shall have been initiated or threatened by the Commission; no stop order suspending or preventing the use of the Prospectus Commission or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; state securities authority and all requests for additional information any request on the part of the Commission for additional information shall have been complied with to your the reasonable satisfaction;satisfaction of the Underwriters.
(b) Xxxxx Xxxxx L.L.P.At the Closing Date, counsel for the Underwriters, you shall have furnished received an opinion of Company Counsel, and [ ], patent counsel to you such written opinion or opinionsthe Company dated the Closing Date, dated such Time of Delivery, addressed to the Underwriters and in form and substance reasonably satisfactory to youUnderwriters' Counsel, substantially in the forms of Exhibit A and Exhibit B, attached hereto respectively, subject to customary assumptions, qualifications, limitations and exceptions.
(c) All proceedings taken in connection with respect the sale of the Firm Shares and the Additional Shares as herein contemplated shall be reasonably satisfactory in form and substance to you and to Underwriters' Counsel, and the Underwriters shall have received from said Underwriters' Counsel a favorable opinion, dated as of the Closing Date in customary form and covering such matters as you may reasonably request, and such counsel the Company shall have received furnished to Underwriters' Counsel such papers and information documents as they may reasonably request to enable for the purpose of enabling them to pass upon such matters;
(c) Xxxxxx & Xxxxxx L.L.P.. In giving such opinion Underwriters' Counsel may rely, as to all matters governed by the laws of jurisdictions other than the law of the State of California, the Federal law of the United States and the General Corporation Law of the State of Delaware, upon the opinions of counsel for the Company, shall have furnished to you their written opinion, dated such Time of Delivery, in form and substance satisfactory to youthe Representative. Underwriters' Counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the effect set forth on Annex IIextent they deem proper, upon certificates of officers of the Company and its subsidiaries and certificates of public officials.
(d) Xxxxxxxx X. Xxxxx, General Counsel At the Closing Date you shall have received a certificate of each of the Chief Executive Officer and Corporate Secretary Chief Financial Officer of the Company, shall have furnished to you his written opinion, dated such Time of Delivery, in form and substance satisfactory to you, the Closing Date to the effect set forth on Annex III.
that (ei) Xxxx Xxxxxxxxxx & Xxxxxxxxx LLP, special Indiana counsel for the Company, shall have furnished to you their written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex IV.
(f) Xxxxxx LLP, counsel for each of the Selling Stockholders, as indicated in Schedule IIA hereto, shall have furnished to you their written opinion with respect to each of the Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect conditions set forth in Annex V.
subsection (ga) Such local counsel of this Section 6 have been satisfied, (ii) as you shall reasonably require shall have furnished to you their written opinion with respect to each of the foreign Selling Stockholdersdate hereof and as of the Closing Date, dated the First Time representations and warranties of Delivery, in form and substance satisfactory to you, to the effect Company set forth in Annex VI.
Section 1 hereof are accurate in all material respects, (hiii) On the date as of the Prospectus at a time Closing Date, the obligations of the Company to be performed hereunder on or prior thereto have been duly performed in all material respects, and (iv) subsequent to the execution respective dates as of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to which information is given in the Registration Statement filed subsequent to and the date of this Agreement and also at each Time of DeliveryProspectus, UHY, LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, Flackman Xxxxxxx & Xxxxxx, P.A. shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) Neither the Company nor the Subsidiaries shall and its subsidiaries have not sustained since the date of the latest audited financial statements included in the Pricing Prospectus any material loss or interference with its business their respective businesses or properties from fire, explosionflood, flood hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or court any legal or governmental actionproceeding, order and there has not been any material adverse change, or decreeany development involving a material adverse change, other than in the business prospects, properties, operations, condition (financial or otherwise), or results of operations of the Company and its subsidiaries taken as set forth a whole, except in each case as described in or contemplated by the Prospectus.
(e) At the time this Agreement is executed and at the Closing Date, you shall have received a letter from KPMG LLP, independent public accountants for the Company, dated, respectively, as of the date of this Agreement and as of the Closing Date addressed to the Underwriters and in form and substance reasonably satisfactory to you, stating that, among other things: (i) they are independent certified public accountants with respect to the Pricing Prospectus Company within the meaning of the Act and the Regulations and stating that the information provided in response to Item 10 of the Registration Statement is correct insofar as it relates to them; (ii) since in their opinion, the respective dates consolidated financial statements and schedule of the Company included in the Registration Statement and the Prospectus and covered by their opinion therein comply as to form in all material respects with the applicable accounting requirements of the Act and the applicable published rules and regulations of the Commission thereunder; (iii) on the basis of procedures consisting of a reading of the latest available unaudited interim consolidated financial statements of the Company and its subsidiaries, a reading of the minutes of meetings and consents of the stockholders and boards of directors of the Company and its subsidiaries and the committees of such boards subsequent to December 31, 1998, inquiries of officers and other employees of the Company and its subsidiaries who have responsibility for financial and accounting matters of the Company and its subsidiaries with respect to transactions and events subsequent to December 31, 1998, a review of interim financial information for the three months ended March 31, 1999 in accordance with the standards established by the American Institute of Certified Public Accountants in Statement of Auditing Standards No. 71, Interim Financial Information with respect to the three-month period ended March 31, 1999 and other specified procedures and inquiries to a date not more than five days prior to the date of such letter, nothing has come to their attention that would cause them to believe that: (A) the unaudited consolidated financial statements and schedule of the Company presented in the Registration Statement and the Prospectus, including the quarterly information set forth under the caption "Management's Discussion and Analysis of Financial Condition and Results of Operations," do not comply as to form in all material respects with the applicable accounting requirements of the Act and, if applicable, the Exchange Act and the applicable published rules and regulations of the Commission thereunder or that such unaudited consolidated financial statements are not fairly presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the Prospectus; (B) with respect to the period subsequent to March 31, 1999, there were, as of which information is given in the Pricing Prospectus there shall date of the most recently available monthly consolidated financial statements of the Company and its subsidiaries, if any, and as of a specified date not have been more than five days prior to the date of such letter, any change changes in the capital stock or long-term debt indebtedness of the Company or any decrease in the Subsidiaries net current assets or stockholders' equity of the Company, in each case as compared with the amounts shown in the most recent balance sheet presented in the Registration Statement and the Prospectus, except for changes or decreases which the Registration Statement and the Prospectus disclose have occurred or may occur or which are set forth in such letter, and except for any changeoption or warrant exercises in the ordinary course of business, or any development involving a prospective change(C) that during the period from April 1, in or affecting 1999 to the general affairs, management, date of the most recent available monthly consolidated financial position, stockholders’ equity or results of operations statements of the Company and its subsidiaries, if any, and to a specified date not more than five days prior to the Subsidiariesdate of such letter, other than there was any decrease, as compared with the corresponding period in the prior fiscal year, in total revenues, or total or per share net income, except for decreases which the Registration Statement and the Prospectus disclose have occurred or may occur or which are set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives so material letter; and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Pricing Prospectus;
(k) On or after the Applicable Time, there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the NYSE; (ii) a suspension or material limitation in trading in the Company’s securities on the NYSE; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Texas State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) they have compared specific dollar amounts, numbers of shares, percentages of revenues and earnings, and other financial information pertaining to the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions Company and its subsidiaries set forth in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms Registration Statement and in the manner contemplated in the Prospectus;
(l) The Shares to be sold at such Time of Delivery shall , which have been duly admitted for trading and quotation on the NYSE;
(m) The Company shall have obtained and delivered specified by you prior to the Underwriters executed copies of a lock-up agreement from each of its directors and executive officers, the Selling Stockholders and each other stockholder identified on Schedule IV hereto, in the form attached as Annex I hereto;
(n) The Company shall have complied with the provisions of Section 5(c) hereof with respect to the furnishing of prospectuses on the New York Business Day next succeeding the date of this Agreement; and
(o) The Company , to the extent that such amounts, numbers, percentages, and information may be derived from the Selling Stockholders shall have furnished or caused to be furnished to you at such Time of Delivery certificates of officers general accounting and financial records of the Company and its subsidiaries or from schedules furnished by the Company, and excluding any questions requiring an interpretation by legal counsel, with the results obtained from the application of the Selling Stockholdersspecified readings, respectivelyinquiries, satisfactory and other appropriate procedures specified by you set forth in such letter, and found them to you as be in agreement.
(f) Subject to the accuracy final paragraph contained in Section 1 of the representations and warranties of the Company and the Selling Stockholdersthis Agreement, respectively, herein at and as of such Time of Delivery, as prior to the performance by the Company and the Selling Stockholders of all of their respective obligations hereunder to be performed at or prior to such Time of DeliveryClosing Date, and the Company shall have furnished or caused to be furnished you such further information, certificates as to the matters set forth in subsections (a) of this Section and as to such other matters documents as you or Underwriters' Counsel may reasonably requestrequest (not involving any additional representations, warranties or covenants).
(pg) The Company At the Closing Date, the Shares shall have furnished been duly authorized for listing on the Nasdaq National Market, subject to official notice of issuance. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as required by this Agreement, or caused to be if any of the certificates, opinions, written statements or letters furnished to you at such Time of Delivery a certificate of the Executive Vice President, Chief Financial Officer and Treasurer or to the effect that:
(i) He is familiar with the internal accounting records of the Company.
(ii) He has reviewed the “Recent Developments” section contained in both the Preliminary Prospectus and the Prospectus. The information presented in such Recent Developments section (A) has been prepared in good faith and based upon assumptions that he believes are reasonable and consistent with the operations of the Company and (B) is a fair estimate Underwriters' Counsel pursuant to this Section 6 shall not be in all material respects reasonably satisfactory in form and substance to you and to Underwriters' Counsel, all obligations of the Company’s total revenues Underwriters hereunder may be cancelled by you at, or at any time prior to, the Closing Date, and net income for the three months ended June 30obligations of the Underwriters to purchase the Additional Shares may be canceled by you at, 2011 and has been derived from or at any time prior to, the Company’s accounting and/or financial recordsAdditional Closing Date. Notice of such cancellation shall be given to the Company in writing, or by telephone, facsimile, telex or telegraph, confirmed in writing.
Appears in 1 contract
Conditions of Underwriters’ Obligations. The several obligations of the Underwriters hereunder, as to the Shares to be delivered at each Time of Delivery, shall be subject, in their discretion, to the condition that all representations and warranties and other statements of the Company and of the Selling Stockholders herein are, at and as of such Time of Delivery, true and correct, the condition that the Company and the Selling Stockholders shall have performed all of its and their obligations hereunder theretofore to be performed, and the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(a) hereof; all material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433 under the Act; if the Company has elected to rely upon Rule 462(b) under the Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m., Washington, D.C. time, on the date of this Agreement; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction;
(b) Xxxxx Xxxxx L.L.P., counsel for the Underwriters, shall have furnished to you such written opinion or opinions, dated such Time of Delivery, in form and substance reasonably satisfactory to you, with respect to such matters as you may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;
(c) Xxxxxx & Xxxxxx L.L.P., counsel for the Company, shall have furnished to you their written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex II.
(d) Xxxxxxxx X. Xxxxx, General Counsel and Corporate Secretary of the Company, shall have furnished to you his written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex III.
(e) Xxxx Xxxxxxxxxx & Xxxxxxxxx LLP, special Indiana counsel for the Company, shall have furnished to you their written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex IV.
(f) Xxxxxx LLP, counsel for each of the Selling Stockholders, as indicated in Schedule IIA hereto, shall have furnished to you their written opinion with respect to each of the Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex V.
(g) Such local counsel as you shall reasonably require shall have furnished to you their written opinion with respect to each of the foreign Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex VI.
(h) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, UHY, LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, Flackman Xxxxxxx & Xxxxxx, P.A. shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) Neither the Company nor the Subsidiaries shall have sustained since the date of the latest audited financial statements included in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, other than as set forth or contemplated in the Pricing Prospectus and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or the Subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and the Subsidiaries, other than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Pricing Prospectus;
(k) On or after the Applicable Time, there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the NYSE; (ii) a suspension or material limitation in trading in the Company’s securities on the NYSE; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Texas State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus;
(l) The Shares to be sold at such Time of Delivery shall have been duly admitted for trading and quotation on the NYSE;
(m) The Company shall have obtained and delivered to the Underwriters executed copies of a lock-up agreement from each of its directors and executive officers, the Selling Stockholders and each other stockholder identified on Schedule IV hereto, in the form attached as Annex I hereto;
(n) The Company shall have complied with the provisions of Section 5(c) hereof with respect to the furnishing of prospectuses on the New York Business Day next succeeding the date of this Agreement; and
(o) The Company and the Selling Stockholders shall have furnished or caused to be furnished to you at such Time of Delivery certificates of officers of the Company and of the Selling Stockholders, respectively, satisfactory to you as are subject to the accuracy of the representations and warranties on the part of the Company on the date hereof and at the Selling Stockholderstime of purchase, respectively, herein at and as of such Time of Delivery, as to the performance by the Company and the Selling Stockholders of all of their respective its obligations hereunder and to be performed at or prior to such Time of Delivery, and the following additional conditions precedent:
(a) The Company shall have furnished or caused to be furnished certificates furnish you at the time of purchase an officer's certificate signed by two of its executive officers certifying as to the matters set forth in subsections Exhibit A hereto.
(ab) The Company shall furnish you at the time of purchase an opinion of White & Case LLP, counsel for the Company, addressed to the Underwriters and dated the time of purchase, with reproduced copies for each of the other Underwriters, in the form of Exhibit B hereto, with only such departures from such form as counsel for the Underwriters shall have approved.
(c) The Company shall furnish you at the time of purchase an intellectual property opinion of White & Case LLP, addressed to the Underwriters and dated the time of purchase, with reproduced copies for each of the other Underwriters, in the form of Exhibit C hereto, with only such departures from such form as counsel for the Underwriters shall have approved.
(d) You shall have received from Ernst & Young LLP letters dated, respectively, the date of this Agreement and the time of purchase, as the case may be, and addressed to the Underwriters (with reproduced copies for each of the Underwriters) in the forms heretofore approved by the Underwriters.
(e) You shall have received at the time of purchase the favorable opinion of Stroock & Stroock & Lavan LLP as to the matters set forth in Exhibit D hereto.
(f) Prior to the time of purchase: (i) no stop order with respect to the effectiveness of the Registration Statement shall have been issued under the Act or proceedings initiated under Section 8(d) or 8(e) of the Act; (ii) the Registration Statement and all amendments thereto, or modifications thereof, if any, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and (iii) the Prospectus and all amendments or supplements thereto, or modifications thereof, if any, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they are made, not misleading.
(g) Between the time of execution of this Section Agreement and the time of purchase, (i) no material adverse change, financial or otherwise (other than as referred to in the Registration Statement and Prospectus at the time of execution of this Agreement), in the business, condition or prospects of the Company and its Subsidiaries taken as a whole shall occur or become known and (ii) no transaction which is material and unfavorable to the Company shall have been entered into by the Company or any of its Subsidiaries.
(h) The Company shall have furnished to you such other documents and certificates as to such other matters the accuracy and completeness of any statement in the Registration Statement and the Prospectus as of the time of purchase as you may reasonably request.
(pi) The Company Shares shall have furnished been approved for quotation on Nasdaq, subject only to notice of issuance at or caused to be furnished to you at such Time of Delivery a certificate of the Executive Vice President, Chief Financial Officer and Treasurer prior to the effect that:time of purchase.
(j) Between the time of execution of this Agreement and the time of purchase, there shall not have occurred any downgrading, nor shall any notice or announcement have been given or made of (i) He is familiar with the internal accounting records of the Company.
any intended or potential downgrading or (ii) He has reviewed any review or possible change that does not indicate an improvement, in the “Recent Developments” section contained in both the Preliminary Prospectus and the Prospectus. The information presented in such Recent Developments section (A) has been prepared in good faith and based upon assumptions that he believes are reasonable and consistent with the operations rating accorded any securities of or guaranteed by the Company and (Bor any Subsidiary by any "nationally recognized statistical rating organization," as that term is defined in Rule 436(g)(2) is a fair estimate in all material respects of under the Company’s total revenues and net income for the three months ended June 30, 2011 and has been derived from the Company’s accounting and/or financial recordsAct.
Appears in 1 contract
Sources: Underwriting Agreement (Aphton Corp)
Conditions of Underwriters’ Obligations. The several obligations of the Underwriters hereunderto purchase and pay for the Firm Shares and the Additional Shares, as to the Shares to be delivered at each Time of Deliveryprovided herein, shall be subjectsubject to the accuracy of the representations and warranties of the Company herein contained, in their discretionas of the date hereof and as of the applicable Closing Date (for purposes of this Section 7, “Closing Date” shall refer to the Closing Date for the Firm Shares and any Additional Closing Date, if different, for the Additional Shares), to the condition that all representations and warranties and other statements of performance by the Company and of the Selling Stockholders herein are, at and as of such Time of Delivery, true and correct, the condition that the Company and the Selling Stockholders shall have performed all of its and their obligations hereunder theretofore to be performedhereunder, and to each of the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in a timely fashion in accordance with Section 5(a4(a) hereof; all material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433 under the Act; if the Company has elected to rely upon Rule 462(b) under the Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m., Washington, D.C. time, on the date of this Agreement; no stop order suspending the effectiveness of the Registration Statement or any part thereof post-effective amendment thereto, and no stop order suspending or preventing the use of any Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus, shall have been issued by the Commission and no proceeding for that purpose proceedings therefor shall have been initiated or threatened by the Commission; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your the Representative’s reasonable satisfaction;; if the Company has elected to rely on Rule 462(b) under the Securities Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m. (New York City time) on the date of this Agreement; and all necessary regulatory or stock exchange approvals shall have been received.
(b) Xxxxx Xxxxx L.L.P., counsel for At the Underwriters, shall have furnished to you such written opinion or opinions, dated such Time of Delivery, in form and substance reasonably satisfactory to you, with respect to such matters as you may reasonably request, and such counsel Closing Date the Representative shall have received such papers (i) the written opinion and information as they may reasonably request to enable them to pass upon such matters;
(c) Xxxxxx & Xxxxxx L.L.P.negative assurance statement of Dentons US LLP, counsel for the Company, shall have furnished dated the Closing Date and addressed to you their written opinion, dated such Time of Deliverythe Underwriters, in form and substance satisfactory to youthe Representative, to the effect set forth on Annex II.
in Exhibit B-1 hereto; and (dii) Xxxxxxxx X. Xxxxxthe written opinion of Bxxxx & Hxxxxxxxx LLP, General Counsel and Corporate Secretary of intellectual property counsel for the Company, shall have furnished dated the Closing Date and addressed to you his written opinion, dated such Time of Deliverythe Underwriters, in form and substance satisfactory to youthe Representative, to the effect set forth on Annex IIIin Exhibit B-2.
(ec) Xxxx Xxxxxxxxxx & Xxxxxxxxx LLPAt the Closing Date, special Indiana counsel for the Company, Representative shall have furnished to you their received the written opinionopinion and negative assurance statement of Underwriters’ Counsel, dated such Time of Deliverythe Closing Date and addressed to the Underwriters, in form and substance satisfactory to you, the Representative with respect to the effect set forth on Annex IV.
(f) Xxxxxx LLP, counsel for each issuance and sale of the Selling StockholdersShares, the Registration Statement, the Pricing Disclosure Package, the Prospectus and such other matters as indicated in Schedule IIA heretothe Representative may require, and the Company shall have furnished to you their written opinion with respect Underwriters’ Counsel such documents as they may reasonably request for the purpose of enabling them to each pass upon such matters.
(d) At the Closing Date the Representative shall have received a certificate of the Selling StockholdersChief Executive Officer and Chief Financial Officer of the Company, dated the First Time of DeliveryClosing Date, in form and substance satisfactory to youthe Representative, as to the effect accuracy of the representations and warranties of the Company set forth in Annex V.
Section 1 hereof as of the date hereof and as of the Closing Date, as to the performance by the Company of all of its obligations hereunder to be performed at or prior to the Closing Date, as to the matters set forth in subsections (a), (f), (g) Such local counsel and (h) of this Section 7, and as you shall to such other matters as the Representative may reasonably require request.
(e) At the time this Agreement is executed and at the Closing Date, the Representative shall have furnished to you their written opinion with respect to each received a comfort letter, from Ernst & Young LLP, independent registered public accountants for the Company, dated, respectively, as of the foreign Selling Stockholdersdate of this Agreement and as of the Closing Date, dated addressed to the First Time of Delivery, Underwriters and in form and substance satisfactory to youthe Underwriters and Underwriters’ Counsel, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the effect set forth financial statements and certain financial information contained in Annex VI.
(h) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to Statement, the date of this Agreement Pricing Disclosure Package and also at each Time of Delivery, UHY, LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, Flackman Xxxxxxx & Xxxxxx, P.A. shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;Prospectus.
(i) Neither the Company nor the Subsidiaries any Subsidiary shall have sustained sustained, since the date of the latest audited financial statements included or incorporated by reference in the Registration Statement, the Pricing Prospectus Disclosure Package and the Prospectus, any material loss or interference with its business or properties from fire, explosion, flood flood, earthquake, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or court any legal or governmental action, order or decreeproceeding, other than as set forth or contemplated in the Registration Statement, the Pricing Disclosure Package and the Prospectus (exclusive of any supplement thereto); and (ii) since subsequent to the respective dates as of which information is given in the Registration Statement (exclusive of any amendment thereto subsequent to the date hereof) and the Pricing Disclosure Package and the Prospectus (exclusive of any supplement thereto), there shall not have been any change in the capital stock or long-term or short-term debt of the Company or the Subsidiaries any Subsidiary or any change, change or any development involving a prospective change, whether or not arising from transactions in or affecting the ordinary course of business, in the business, general affairs, management, condition (financial positionor otherwise), results of operations, stockholders’ equity equity, properties or results of operations prospects of the Company and the Subsidiaries, other than individually or taken as set forth or contemplated in the Pricing Prospectusa whole, the effect of which, in any such case described in clause (i) or (ii)above, is is, in the judgment of the Representatives Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery Offering on the terms and in the manner contemplated in the Registration Statement, the Pricing Prospectus;Disclosure Package and the Prospectus (exclusive of any such supplement).
(kg) On or after the Applicable Time, there (i) no downgrading shall not have occurred in the rating accorded the Company’s or any Subsidiaries’ debt securities or preferred stock or the Company’s or any Subsidiaries’ financial strength or claims paying ability by any “nationally recognized statistical rating organization”, as such term is defined in Section 3(a)(62) of the Exchange Act, and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the following: Company’s or any Subsidiaries’ debt securities or preferred stock or the Company’s or any Subsidiaries’ financial strength or claims paying ability.
(h) No Underwriter shall have discovered and disclosed to the Company on or prior to such Closing Date that any of the Registration Statement, the Pricing Disclosure Package or the Prospectus, or any amendment or supplement thereto, contains an untrue statement of a fact which, in the opinion of Underwriters’ Counsel, is material or omits to state a fact which, in the opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(i) As of the date of this Agreement, the Representative shall have received a suspension duly executed Lock-Up Agreement from each person who is a director or material limitation executive officer of the Company and each shareholder and other person or entity listed on Schedule IV hereto, in trading each case substantially in securities generally the form attached hereto as Exhibit C.
(j) At the Closing Date, the Shares shall have been approved for quotation on the NYSE; Nasdaq Global Market, subject only to official notice of issuance.
(iik) The Chief Financial Officer of the Company shall have furnished to the Representative a suspension or material limitation in trading certificate, dated as of the date of this Agreement and on each Closing Date, in the Company’s securities on the NYSE; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Texas State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus;form attached hereto as Exhibit D.
(l) The Shares to be sold at such Time of Delivery If a filing has been made with FINRA, FINRA shall have been duly admitted for trading confirmed that it has not raised any objection with respect to the fairness and quotation on reasonableness of the NYSE;underwriting terms and arrangements relating to the Offering of the Shares.
(m) The Company shall have obtained furnished the Underwriters and delivered Underwriters’ Counsel with such other certificates, opinions or other documents as they may have reasonably requested. If any of the conditions specified in this Section 7 shall not have been fulfilled when and as required by this Agreement, or if any of the certificates, opinions, written statements or letters furnished to the Representative or to Underwriters’ Counsel pursuant to this Section 7 shall not be satisfactory in form and substance to the Representative and to Underwriters’ Counsel, all obligations of the Underwriters executed copies of a lock-up agreement from each of its directors and executive officershereunder may be cancelled by the Representative at, or at any time prior to, the Selling Stockholders and each other stockholder identified on Schedule IV hereto, in the form attached as Annex I hereto;
(n) The Company shall have complied with the provisions of Section 5(c) hereof with respect to the furnishing of prospectuses on the New York Business Day next succeeding the date of this Agreement; and
(o) The Company Closing Date and the Selling Stockholders shall have furnished or caused to be furnished to you at such Time of Delivery certificates of officers obligations of the Company and of Underwriters to purchase the Selling Stockholders, respectively, satisfactory to you as to the accuracy of the representations and warranties of the Company and the Selling Stockholders, respectively, herein at and as of such Time of Delivery, as to the performance Additional Shares may be cancelled by the Company and the Selling Stockholders of all of their respective obligations hereunder to be performed Representative at, or at or any time prior to such Time of Deliveryto, and the Company shall have furnished or caused to be furnished certificates as to the matters set forth in subsections (a) of this Section and as to such other matters as you may reasonably request.
(p) The Company shall have furnished or caused to be furnished to you at such Time of Delivery a certificate of the Executive Vice President, Chief Financial Officer and Treasurer to the effect that:
(i) He is familiar with the internal accounting records of the Company.
(ii) He has reviewed the “Recent Developments” section contained in both the Preliminary Prospectus and the Prospectus. The information presented in such Recent Developments section (A) has been prepared in good faith and based upon assumptions that he believes are reasonable and consistent with the operations of the Company and (B) is a fair estimate in all material respects of the Company’s total revenues and net income for the three months ended June 30, 2011 and has been derived from the Company’s accounting and/or financial records.any Additional Closing
Appears in 1 contract
Sources: Underwriting Agreement (Arcturus Therapeutics Holdings Inc.)
Conditions of Underwriters’ Obligations. The obligations of the Underwriters hereunder, as to the Shares Units to be delivered at each Time of Delivery, shall be subject, in their discretion, to the condition that all representations and warranties and other statements of the Company and of the Selling Stockholders Partnership Parties herein are, at and as of such Time of Delivery, true and correct, the condition that the Company and the Selling Stockholders Partnership Parties shall have performed all of its and their obligations hereunder theretofore to be performed, and the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(a) hereof; all material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433 under the Act; if the Company Partnership has elected to rely upon Rule 462(b) under the Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m., Washington, D.C. time, on the date of this Agreement; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; no stop order suspending or preventing the use of the a Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction;
(b) Xxxxx Xxxxx The Representatives shall have received the opinion of Xxxxxx & Xxxxxx L.L.P., counsel for the UnderwritersPartnership, shall have furnished to you such written opinion or opinions, the effect set forth on Exhibit B addressed to them and dated such Time of Delivery, in form and substance reasonably satisfactory to you, with respect to such matters as you may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such mattersthe Representatives;
(c) Xxxxxx & Xxxxxx L.L.P., counsel for the Company, The Representatives shall have furnished received the opinion of J. Xxxxxxx Xxxxxxxx, Vice President, General Counsel and Corporate Secretary of the General Partner, addressed to you their written opinion, them and dated such Time of Delivery, in form and substance reasonably satisfactory to youthe Representatives, to the effect set forth on Annex II.Exhibit C hereto;
(d) Xxxxxxxx X. Xxxxx, General Counsel and Corporate Secretary of the Company, The Representatives shall have furnished received from Xxxxxx & Xxxxxxx LLP, counsel to you his written opinionthe Underwriters, such opinion or opinions, dated such Time of Delivery, in form Delivery with respect to such matters as the Representatives may reasonably require; and substance satisfactory to you, to the effect set forth on Annex III.
(e) Xxxx Xxxxxxxxxx & Xxxxxxxxx LLP, special Indiana counsel for the Company, Partnership Parties shall have furnished to you their written opinionsuch counsel such documents as they reasonably request for the purposes of enabling them to review or pass on the matters referred to in this Section 8 and in order to evidence the accuracy, dated such Time completeness and satisfaction of Deliverythe representations, in form warranties and substance satisfactory to you, to the effect set forth on Annex IV.conditions herein contained;
(f) Xxxxxx LLP, counsel for each of the Selling Stockholders, as indicated in Schedule IIA hereto, shall have furnished to you their written opinion with respect to each of the Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex V.
(g) Such local counsel as you shall reasonably require shall have furnished to you their written opinion with respect to each of the foreign Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex VI.
(he) On the date of the Prospectus at a the time prior to of the execution of this Agreement, at 9:30 a.m.8:30 p.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, UHY, KPMG LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) On the date None of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, Flackman Xxxxxxx & Xxxxxx, P.A. shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) Neither the Company nor the Subsidiaries Partnership Entities shall have sustained since the date of the latest audited financial statements included in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, other than as set forth or contemplated in the Pricing Prospectus Prospectus, and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock capitalization or long-term debt of any of the Company or the Subsidiaries Partnership Entities or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholdersmembers’ equity, partners’ equity or results of operations of any of the Company and the Subsidiaries, Partnership Entities other than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares Units being delivered at such Time of Delivery on the terms and in the manner contemplated in the Pricing Prospectus;
(kg) On or after the Applicable Time, there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the NYSE; (ii) a suspension or material limitation in trading in the CompanyPartnership’s securities on the NYSE; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Texas State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war war; or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares Units being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus;
(lh) The Shares Units to be sold at such Time of Delivery shall have been duly admitted for trading and quotation on the NYSE;
(mi) The Company Representatives shall have obtained received duly and delivered validly executed Lock-Up Agreements referred to in Section 5(f) hereof, between the Underwriters executed copies of a lock-up agreement from each of its Representatives, on the one hand, and the officers, directors and executive officersunitholders of the Partnership, on the Selling Stockholders and other hand, each other stockholder identified as set forth on Schedule IV heretoV, and such Lock-Up Agreements shall be in the form attached as Annex I hereto;
(n) The Company shall have complied with the provisions full force and effect at such Time of Section 5(c) hereof with respect to the furnishing of prospectuses on the New York Business Day next succeeding the date of this AgreementDelivery; and
(oj) The Company and the Selling Stockholders Partnership shall have furnished or caused to be furnished to you the Representatives at such Time of Delivery certificates of officers of the Company and of the Selling Stockholders, respectively, Partnership Parties satisfactory to you the Representatives as to the accuracy of the representations and warranties of the Company and the Selling Stockholders, respectively, Partnership Parties herein at and as of such Time of Delivery, as to the performance by the Company and the Selling Stockholders Partnership Parties of all of their respective obligations hereunder to be performed at or prior to such Time of Delivery, and the Company shall have furnished or caused to be furnished certificates as to the matters set forth in subsections (aSections 8(a) of this Section and 8(f) hereof and any such further information, opinions, certificates and documents as to such other matters as you the Representatives may have reasonably requestrequested.
(p) The Company shall have furnished or caused to be furnished to you at such Time of Delivery a certificate of the Executive Vice President, Chief Financial Officer and Treasurer to the effect that:
(i) He is familiar with the internal accounting records of the Company.
(ii) He has reviewed the “Recent Developments” section contained in both the Preliminary Prospectus and the Prospectus. The information presented in such Recent Developments section (A) has been prepared in good faith and based upon assumptions that he believes are reasonable and consistent with the operations of the Company and (B) is a fair estimate in all material respects of the Company’s total revenues and net income for the three months ended June 30, 2011 and has been derived from the Company’s accounting and/or financial records.
Appears in 1 contract
Sources: Underwriting Agreement (USA Compression Partners, LP)
Conditions of Underwriters’ Obligations. The obligations of the several Underwriters hereunder, as hereunder are subject to the Shares to be delivered at each Time accuracy of Delivery, shall be subject, in their discretion, to the condition that all representations and warranties and other statements of the Company and the Trust contained in Section 6 hereof or in certificates of any officer of the Selling Stockholders herein areCompany or any subsidiary of the Company or any Trustee of the Trust delivered pursuant to the provisions hereof, at and as to the performance by each of such Time of Delivery, true and correct, the condition that the Company and the Selling Stockholders shall have performed all Trust of its covenants and their other obligations hereunder theretofore to be performedhereunder, and to the following additional further conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(a) hereof; all material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433 under the Act; if the Company has elected to rely upon Rule 462(b) under the Act, the Rule 462(b) Registration Statement shall have has become effective by 10:00 p.m., Washington, D.C. time, and on the date of this Agreement; Closing Date no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been under the Act or proceedings therefor initiated or threatened by the Commission; no stop order suspending or preventing the use of the Prospectus or , and any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information request on the part of the Commission for additional information shall have been complied with to your the reasonable satisfaction;satisfaction of counsel to the Underwriters. The Prospectus shall have been filed with the Commission in accordance with Rule 424(b).
(b) Xxxxx Xxxxx L.L.P.On the Closing Date, counsel for the Underwriters, Underwriters shall have furnished to you such written opinion or received the favorable opinions, dated such Time as of Deliverythe Closing Date, in form and substance reasonably satisfactory to youof (i) Seyfarth, with respect to such matters as you may reasonably requestShaw, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;
(c) Xxxxxx Fairxxxxxxx & Xxxxxx L.L.P.Xeraxxxxx, counsel xxunsel for the Company, shall have furnished to you their written opinion, dated such Time of DeliveryCompany and the Trust, in form and substance satisfactory to youcounsel for the Underwriters, together with signed or reproduced copies of such letter for each of the other Underwriters to the effect set forth on Annex II.
in Exhibit A-1 hereto and to such further effect as counsel to the Underwriters may reasonably request, (dii) Xxxxxxxx X. XxxxxJordan B. Axxxx, Xxecutive Vice President, General Counsel and Corporate Secretary of the Company, shall have furnished to you his written opinion, dated such Time of Delivery, in form and substance satisfactory to youcounsel for the Underwriters, together with signed or reproduced copies of such letter for each of the other Underwriters to the effect set forth on Annex III.
in Exhibit A-2 and to such further effect as counsel to the Underwriters may reasonably request, (eiii) Xxxx Xxxxxxxxxx Preston, Gates, Ellix & Xxxxxxxxx LLPXouvelas Meedx, special Indiana counsel xxunsel for the Company, shall have furnished to you their written opinion, dated such Time of Delivery, in form and substance satisfactory to youcounsel for the Underwriters, together with signed or reproduced copies of such letter for each of the other Underwriters to the effect set forth on Annex IV.
in Exhibit A-3 hereto and to such further effect as counsel to the Underwriters may reasonably request, (fiv) Richxxxx, Xxxxxx LLP& Xinger, P.A., counsel for each of the Selling Stockholders, as indicated in Schedule IIA hereto, shall have furnished to you their written opinion with respect to each of Company and the Selling Stockholders, dated the First Time of DeliveryTrust, in form and substance satisfactory to youcounsel for the Underwriters, together with signed or reproduced copies of such letter for each of the other Underwriters to the effect set forth in Annex V.
Exhibit A-4 hereto and to such further effect as counsel to the Underwriters may reasonably request and (gv) Such local Emmex, Xxxxxx xxx Martxx, XXP, counsel as you shall reasonably require shall have furnished to you their written opinion with respect to each of for the foreign Selling StockholdersIndenture Trustee, dated the First Time of DeliveryProperty Trustee, the Delaware Trustee and the Guarantee Trustee, in form and substance satisfactory to youcounsel for the Underwriters, together with signed or reproduced copies of such Letter for each of the other Underwriters to the effect set forth in Annex VIExhibit A-5 hereto and to such further effect as counsel to the Underwriters may reasonably request. Such counsel may state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company and its subsidiaries and certificates of public officials.
(hc) On the date Closing Date, the Underwriters shall have received the favorable opinion, dated as of the Prospectus at Closing Date, of Sidley & Austin, counsel for the Underwriters, together with signed or reproduced copies of such letter for each of the other Underwriters to the effect set forth in Exhibit C. In giving such opinion such counsel may rely, as to all matters governed by the laws of jurisdictions other than the law of the State of New York, the federal law of the United States and the General Corporation Law of the State of Delaware, upon the opinions of counsel satisfactory to the Representatives. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company and its subsidiaries and certificates of public officials.
(d) On the Closing Date, the Underwriters shall have received a time certificate of the President or a Vice President of the Company and of the chief financial or chief accounting officer of the Company, dated as of the Closing Date, to the effect that (i) the representations and warranties in Section 6 hereof are true and correct with the same force and effect as though expressly made on and as of the Closing Date, (ii) the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied on or prior to the execution Closing Date, and (iii) no stop order suspending the effectiveness of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent has been issued and no proceedings for that purpose have been instituted or are pending or to the date of this Agreement and also at each Time of Delivery, UHY, LLP shall have furnished to you a letter or letters, dated Company's knowledge are contemplated by the respective dates of delivery thereof, in form and substance satisfactory to you;Commission.
(ie) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, Flackman Xxxxxxx & Xxxxxx, P.A. shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) Neither the Company nor the Subsidiaries shall have sustained since the date of the latest audited financial statements included in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, other than as set forth or contemplated in the Pricing Prospectus and (ii) since Since the respective dates as of which information is given in the Pricing Prospectus other than as set forth in the Prospectus (exclusive of any amendments or supplements thereto subsequent to the date hereof), (i) there shall not have occurred any change or any development involving a prospective change in the condition, financial or otherwise, or the earnings, business, management or operations of the Company and its subsidiaries, taken as a whole, (ii) there shall not have been any change or any development involving a prospective change in the capital stock or in the long-term debt of the Company or the Subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of its subsidiaries and (iii) neither the Company and the Subsidiariesnor any of its subsidiaries shall have incurred any liability or obligation, other than as set forth direct or contemplated in the Pricing Prospectuscontingent, the effect of which, in any such case described in clause (i8(e)(i), 8(e)(ii) or (ii8(e)(iii), in your judgment, is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and and, in the manner contemplated in the Pricing Prospectus;
(k) On or after the Applicable Timeyour judgment, there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the NYSE; (ii) a suspension or material limitation in trading in the Company’s securities on the NYSE; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Texas State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with market the public offering or the delivery of the Shares being delivered at such Time of Delivery Securities on the terms and in the manner contemplated in the Prospectus;.
(f) At the time of the execution of this Agreement, the Underwriters shall have received from KPMG LLP a letter dated such date, in form and substance satisfactory to the Underwriters, together with signed or reproduced copies of such letter for each of the other Underwriters containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in or incorporated by reference into the Registration Statement and the Prospectus .
(g) On the Closing Date, the Underwriters shall have received from KPMG LLP a letter, dated as of the Closing Date, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that (i) the specified date referred to therein shall be a date not more than three business days prior to the Closing Date, (ii) such letter shall state that KPMG LLP has conducted a SFAS No. 71 review of the Company's unaudited condensed consolidated balance sheet as of December 31, 1999, the unaudited condensed statements of operations for the three and 12 months ended December 31, 1999 and the unaudited condensed consolidated statement of cash flows for the 12 months ended December 31, 1999 and shall contain customary "negative assurance" provisions as to such financial statements, and (iii) such letter shall contain a customary "negative assurance" provision as to the period from January 1, 2000 through a date not more than three business days prior to the Closing Date.
(h) On the Closing Date, the Securities and the shares of Common Stock issuable upon conversion of the Securities shall have been approved for inclusion in the Nasdaq National Market, subject only to official notice of issuance.
(i) The NASD has confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(j) The Company shall have delivered to you the agreements specified in Section 2 hereof which agreements shall be in full force and effect on the Closing Date.
(k) The Underwriters shall have received a certificate of the Administrative Trustees of the Trust to the effect that (i) the representations and warranties of the Trust in Section 6 hereof are true and correct with the same force and effect as though expressly made on and as of the Closing Date, (ii) the Trust has complied with all agreements and satisfied all conditions on its part to be performed or satisfied on or prior to the Closing Date, and (iii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or to the Trust's knowledge as contemplated by the Commission.
(l) The Shares to be sold at such Time of Delivery Preferred Guarantee, the Declaration and the Indenture shall have been duly admitted for trading executed and quotation on delivered, in each case in a form reasonably satisfactory to counsel to the NYSE;Underwriters.
(m) The Company shall have obtained and delivered to In the event that the Underwriters executed copies of a lock-up agreement from each of its directors and executive officers, the Selling Stockholders and each other stockholder identified on Schedule IV hereto, exercise their option provided in the form attached as Annex I hereto;
(n) The Company shall have complied with the provisions of Section 5(c) 2 hereof with respect to the furnishing of prospectuses on the New York Business Day next succeeding the date of this Agreement; and
(o) The Company and the Selling Stockholders shall have furnished purchase all or caused to be furnished to you at such Time of Delivery certificates of officers any portion of the Company and of the Selling StockholdersAdditional Securities, respectively, satisfactory to you as to the accuracy of the representations and warranties of the Company and the Selling Stockholders, respectively, Trust contained herein at and as of such Time of Delivery, as to the performance statements in any certificates furnished by the Company and the Selling Stockholders or any subsidiary of all of their respective obligations hereunder to be performed at or prior to such Time of Delivery, and the Company or the Trust hereunder shall have furnished or caused to be furnished certificates true and correct as to of each Option Closing Date, the matters condition set forth in subsections (aSection 8(e) of this Section and as to such other matters as you may reasonably request.
(p) The Company shall be satisfied and, on the relevant Option Closing Date, the Underwriters shall have furnished or caused to be furnished to you at such Time of Delivery a certificate of the Executive Vice President, Chief Financial Officer and Treasurer to the effect thatreceived:
(i) He is familiar with the internal accounting records A certificate, dated such Option Closing Date, of the CompanyPresident or a Vice President of the Company and of the chief financial or chief accounting officer of the Company confirming that the certificate delivered on the Closing Date pursuant to Section 8(d) hereof remains true and correct as of such Option Closing Date.
(ii) He has reviewed The favorable opinion of Seyfarth, Shaw, Fairxxxxxxx & Xeraxxxxx, counsel for the “Recent Developments” section contained in both the Preliminary Prospectus Company, Jordan B. Axxxx, Xxecutive Vice President, General Counsel and the Prospectus. The information presented in such Recent Developments section (A) has been prepared in good faith and based upon assumptions that he believes are reasonable and consistent with the operations of the Company and (B) is a fair estimate in all material respects Secretary of the Company’s total revenues and net income , Preston, Gates, Ellix & Rouvelas Meedx, xxunsel for the three months ended June 30Company, 2011 and has been derived from Richxxxx, Xxxxxx & Xinger, P.A., counsel for the Company’s accounting and/or financial records, and Emmex, Xxxxxx & Xartxx, XXP, counsel for the Indenture Trustee, Property Trustee, Delaware Trustee and Guarantee Trustee, each in form and substance satisfactory to counsel for the Underwriters, dated such Option Closing Date, relating to the Additional Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 8(b) hereof.
(iii) The favorable opinion of Sidley & Austin, counsel for the Underwriters, dated such Option Closing Date, relating to the Additional Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 8(c) hereof.
(iv) A letter from KPMG LLP, in form and substance satisfactory to the Underwriters and dated such Option Closing Date, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 8(g) hereof, except that the "specified date" in the letter furnished pursuant to this paragraph shall be a date not more than three business days prior to such Option Closing Date.
(v) A certificate, dated such Option Closing Date, of the Administrative Trustees of the Trust confirming that the certificate delivered on the Closing Date pursuant to Section 8(k) hereof remains true and correct as of such Option Closing Date.
(n) On the Closing Date and on each Option Closing Date, counsel for the Underwriters shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities as herein contemplated, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities as herein contemplated shall be satisfactory in form and substance to the Underwriters and counsel for the Underwriters.
Appears in 1 contract
Sources: Underwriting Agreement (American Classic Voyages Co)
Conditions of Underwriters’ Obligations. The obligations of the several Underwriters hereunder, as to purchase and pay for the Securities that they have respectively agreed to purchase hereunder are subject to the Shares accuracy of the representations and warranties of the Company contained herein on the date hereof and on the Closing Date or in certificates of any officer of the Company or any Subsidiary delivered pursuant to be delivered at each Time of Delivery, shall be subject, in their discretionthe provisions hereof, to the condition that all representations and warranties and other statements of performance by the Company and of the Selling Stockholders herein are, at and as of such Time of Delivery, true and correct, the condition that the Company and the Selling Stockholders shall have performed all of its and their obligations hereunder theretofore to be performedhereunder, and to the following additional further conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(a) hereof; all material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433 under the Act; if the Company has elected to rely upon Rule 462(b) under the Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m., Washington, D.C. time, on the date of this Agreement; no stop No order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued be in effect, and no proceeding for that purpose such purpose, pursuant to Rule 401(g)(2) or pursuant to Section 8A under the 1933 Act shall have been initiated or be pending before or, to the knowledge of the Company, threatened by the Commission; no stop order suspending or preventing the use of the Prospectus or any and each Issuer Free Writing Prospectus shall have been initiated or threatened timely filed with the Commission under the 1933 Act (in the case of a Issuer Free Writing Prospectus, to the extent required by Rule 433 under the Commission0000 Xxx); and all requests by the Commission for additional information on relating to the part of the Commission Registration Statement shall have been complied with to your the reasonable satisfaction;satisfaction of the Representative.
(b) Xxxxx Xxxxx L.L.P.On the Closing Date, counsel for the Underwriters, shall have furnished to you such written opinion or opinions, dated such Time of Delivery, in form and substance reasonably satisfactory to you, with respect to such matters as you may reasonably request, and such counsel shall have received such papers a signed opinion and information as they may reasonably request to enable them to pass upon such matters;
(c) Xxxxxx letter of Xxxxxxxx & Xxxxxx L.L.P.Xxxxxxxx LLP, counsel for the Company, shall have furnished to you their written opinion, dated such Time as of Delivery, in form and substance satisfactory to youthe Closing Date, to the effect set forth on Annex II.Exhibit A.
(dc) On the Closing Date, you shall have received a signed opinion of Xxxxxxxx X. XxxxxXxxxxx, Esq., Senior Vice President, Deputy General Counsel and Corporate Secretary of for the Company, shall have furnished to you his written opinion, dated such Time as of Delivery, in form and substance satisfactory to youthe Closing Date, to the effect set forth on Annex III.Exhibit B.
(ed) Xxxx Xxxxxxxxxx & Xxxxxxxxx LLPOn the Closing Date, you shall have received a signed opinion of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., as special Indiana communications counsel for to the Company, shall have furnished to you their written opinion, dated such Time as of Delivery, in form and substance satisfactory to youthe Closing Date, to the effect set forth on Annex IVExhibit C.
(e) On the Closing Date, you shall have received the favorable opinion of Shearman & Sterling LLP, counsel for the Underwriters, dated as of the Closing Date, to the effect that the opinions delivered pursuant to Sections 5(a), 5(b) and 5(c) appear on their face to be appropriately responsive to the requirements of this Agreement except, specifying the same, to the extent waived by you, and with respect to the incorporation and legal existence of the Company, the Securities, this Agreement, the Indenture, the Registration Statement, the Time of Sale Information, the Prospectus, the documents incorporated by reference therein and such other related matters as you may require. In rendering such opinion, such counsel may state that they express no opinion as to the laws of any jurisdiction other than the Federal laws of the United States, the laws of the State of New York and the General Corporation Law of the State of Delaware, and no opinion as to federal or state communications laws. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company and the Subsidiaries and certificates of public officials.
(f) Xxxxxx LLP, counsel for each of the Selling Stockholders, as indicated in Schedule IIA hereto, shall have furnished to you their written opinion with respect to each of the Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex V.
(g) Such local counsel as you shall reasonably require shall have furnished to you their written opinion with respect to each of the foreign Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex VI.
(h) On the date of the Prospectus at a time prior to the execution of this AgreementClosing Date, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, UHY, LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) On the date Prospectus, as it may then be amended or supplemented, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the Prospectus at a time prior to the execution of this Agreementstatements therein not misleading, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, Flackman Xxxxxxx & Xxxxxx, P.A. shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) Neither the Company nor the Subsidiaries shall have sustained since the date of the latest audited financial statements included in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, other than as set forth or contemplated in the Pricing Prospectus and (ii) there shall not have been, since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt Time of the Company Sale Information or the Subsidiaries or Prospectus, any change, material adverse change or any development involving a prospective material adverse change, in or affecting the general affairs, management, financial position, stockholders’ stockholder’s equity or results of operations of the Company and the Subsidiariesits subsidiaries, other than considered as set forth or contemplated in the Pricing Prospectusone enterprise, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Pricing Prospectus;
(k) On or after the Applicable Time, there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the NYSE; (ii) a suspension or material limitation in trading in the Company’s securities on the NYSE; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Texas State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus;
(l) The Shares to be sold at such Time of Delivery shall have been duly admitted for trading and quotation on the NYSE;
(m) The Company shall have obtained and delivered to the Underwriters executed copies of a lock-up agreement from each of its directors and executive officers, the Selling Stockholders and each other stockholder identified on Schedule IV hereto, in the form attached as Annex I hereto;
(n) The Company shall have complied with the provisions of Section 5(c) hereof with respect all agreements and satisfied all conditions set forth herein on its part to be performed or satisfied at or prior to the furnishing of prospectuses on Closing Date and (iv) the New York Business Day next succeeding the date of this Agreement; and
(o) The Company and the Selling Stockholders shall have furnished or caused to be furnished to you at such Time of Delivery certificates of officers of the Company and of the Selling Stockholders, respectively, satisfactory to you as to the accuracy of the other representations and warranties of the Company and the Selling Stockholders, respectively, herein set forth in Section 1(a) shall be accurate as though expressly made at and as of the Closing Date. On the Closing Date, you shall have received a certificate of the Chief Executive Officer, President, a Vice Chairman or a Vice President, and the Treasurer or Controller, of the Company, dated as of the Closing Date, to such Time effect.
(g) You shall have received from KPMG LLP (i) at the time of Deliveryexecution of this Agreement, a letter dated the date hereof and in accordance with statement on Auditing Standards No. 72, as amended, in form and substance satisfactory to the performance Representative and (ii) on the Closing Date, a letter, dated as of the Closing Date, to the effect that KPMG LLP reaffirms the statements made in the letter furnished pursuant to Section 5(g)(i), except that the specified date referred to shall be a date not more than five business days prior to the Closing Date.
(h) On or after the date hereof, (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities by any “nationally recognized statistical rating organization”, as that term is defined by the Company Commission for purposes of Rule 436(g)(2) under the 1933 Act, and (ii) no such organization shall have publicly announced that it is placing under surveillance or review, with possible negative implications, its rating of any of the Company’s debt securities.
(i) On the Closing Date, counsel for the Underwriters shall have been furnished with all such documents, certificates and opinions as they may reasonably request for the purpose of enabling them to pass upon the issuance and sale of the Securities contemplated in this Agreement and the Selling Stockholders matters referred to in Section 5(d) and in order to evidence the accuracy and completeness of all any of their respective obligations hereunder the representations, warranties or statements of the Company, the performance of any of the covenants of the Company, or the fulfillment of any of the conditions herein contained. If any of the conditions specified in this Section 5 shall not have been fulfilled when and as required by this Agreement to be performed fulfilled, this Agreement may be terminated by you on notice to the Company at any time at or prior to such Time of Deliverythe Closing Date, and such termination shall be without liability of any party to any other party. Notwithstanding any such termination, the Company provisions of Sections 4, 6, 7 and 8 shall have furnished or caused to be furnished certificates as to the matters set forth remain in subsections (a) of this Section and as to such other matters as you may reasonably requesteffect.
(p) The Company shall have furnished or caused to be furnished to you at such Time of Delivery a certificate of the Executive Vice President, Chief Financial Officer and Treasurer to the effect that:
(i) He is familiar with the internal accounting records of the Company.
(ii) He has reviewed the “Recent Developments” section contained in both the Preliminary Prospectus and the Prospectus. The information presented in such Recent Developments section (A) has been prepared in good faith and based upon assumptions that he believes are reasonable and consistent with the operations of the Company and (B) is a fair estimate in all material respects of the Company’s total revenues and net income for the three months ended June 30, 2011 and has been derived from the Company’s accounting and/or financial records.
Appears in 1 contract
Sources: Underwriting Agreement (Cablevision Systems Corp /Ny)
Conditions of Underwriters’ Obligations. The several obligations of the Underwriters hereunderto purchase and pay for the Firm Shares and the Additional Shares, as to the Shares to be delivered at each Time of Deliveryprovided herein, shall be subjectsubject to the accuracy of the representations and warranties of the Company herein contained, in their discretionas of the date hereof and as of the applicable Closing Date (for purposes of this Section 7, “Closing Date” shall refer to the Closing Date for the Firm Shares and any Additional Closing Date, if different, for the Additional Shares), to the condition that all representations and warranties and other statements of performance by the Company and of the Selling Stockholders herein are, at and as of such Time of Delivery, true and correct, the condition that the Company and the Selling Stockholders shall have performed all of its and their obligations hereunder theretofore to be performedhereunder, and to each of the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in a timely fashion in accordance with Section 5(a4(a) hereof; all material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433 under the Act; if the Company has elected to rely upon Rule 462(b) under the Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m., Washington, D.C. time, on the date of this Agreement; no stop order suspending the effectiveness of the Registration Statement or any part thereof post-effective amendment thereto, and no stop order suspending or preventing the use of any Preliminary Prospectus, any Issuer Free Writing Prospectus, or the Prospectus, shall have been issued by the Commission and no proceeding for that purpose proceedings therefor shall have been initiated or threatened by the Commission; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your the Representative’s reasonable satisfaction;; if the Company has elected to rely on Rule 462(b) under the Securities Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m. (New York City time) on the date of this Agreement; and all necessary regulatory or stock exchange approvals shall have been received.
(bi) Xxxxx Xxxxx L.L.P.At the Closing Date the Representative shall have received the written opinion and negative assurance statement of Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, P.C., counsel for the Underwriters, shall have furnished to you such written opinion or opinionsCompany, dated such Time of Deliverythe Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to you, with respect to such matters as you may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;the Representative.
(c) At the Closing Date the Representative shall have received the written opinion of Xxxxxx & Xxxxxx L.L.P.LLP, intellectual property counsel for the Company, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representative.
(d) At the Closing Date, the Representative shall have furnished to you their received the written opinionopinion and negative assurance statement of Underwriters’ Counsel, dated such Time of Deliverythe Closing Date and addressed to the Underwriters, in form and substance satisfactory to youthe Representative, with respect to the effect set forth on Annex IIissuance and sale of the Shares, the Registration Statement, the Pricing Disclosure Package, the Prospectus and such other matters as the Representative may require, and the Company shall have furnished to Underwriters’ Counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(de) Xxxxxxxx X. Xxxxx, General Counsel At the Closing Date the Representative shall have received a certificate of the Chief Executive Officer and Corporate Secretary Chief Financial Officer of the Company, shall have furnished to you his written opinion, dated such Time of Deliverythe Closing Date, in form and substance satisfactory to you, the Representative as to the effect accuracy of the representations and warranties of the Company set forth on Annex IIIin Section 1 hereof as of the date hereof and as of the Closing Date, as to the performance by the Company of all of its obligations hereunder to be performed at or prior to the Closing Date, as to the matters set forth in subsections (a) and (h) of this Section 7, and as to such other matters as the Representative may reasonably request.
(ef) Xxxx Xxxxxxxxxx & Xxxxxxxxx At the time this Agreement is executed and at the Closing Date, the Representative shall have received a comfort letter, from Xxxxxx LLP, special Indiana counsel independent registered public auditing firm for the Company, shall have furnished dated, respectively, as of the date of this Agreement and as of the Closing Date, addressed to you their written opinion, dated such Time of Delivery, the Underwriters and in form and substance satisfactory to youthe Underwriters and Underwriters’ Counsel, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the effect set forth on Annex IVfinancial statements and certain financial information contained in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
(f) Xxxxxx LLP, counsel for each of the Selling Stockholders, as indicated in Schedule IIA hereto, shall have furnished to you their written opinion with respect to each of the Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex V.
(g) Such local counsel as you shall reasonably require shall have furnished to you their written opinion with respect to each of the foreign Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex VI.
(h) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, UHY, LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, Flackman Xxxxxxx & Xxxxxx, P.A. shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) Neither the Company nor the Subsidiaries any Subsidiary shall have sustained sustained, since the date of the latest audited financial statements included or incorporated by reference in the Registration Statement, the Pricing Prospectus Disclosure Package and the Prospectus, any material loss or interference with its business or properties from fire, explosion, flood flood, earthquake, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or court any legal or governmental action, order or decreeproceeding, other than as set forth or contemplated in the Registration Statement, the Pricing Disclosure Package and the Prospectus (exclusive of any supplement thereto); and (ii) since subsequent to the respective dates as of which information is given in the Registration Statement (exclusive of any amendment thereto subsequent to the date hereof) and the Pricing Disclosure Package and the Prospectus (exclusive of any supplement thereto), there shall not have been any change in the capital stock or long-term or short-term debt of the Company or the Subsidiaries or any change, change or any development involving a prospective change, whether or not arising from transactions in or affecting the ordinary course of business, in the business, general affairs, management, condition (financial positionor otherwise), results of operations, stockholders’ equity equity, properties or results of operations prospects of the Company and the Subsidiaries, other than individually or taken as set forth or contemplated in the Pricing Prospectusa whole, the effect of which, in any such case described in clause (i) or (ii)above, is is, in the judgment of the Representatives Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery Offering on the terms and in the manner contemplated in the Registration Statement, the Pricing Prospectus;Disclosure Package and the Prospectus (exclusive of any such supplement).
(kh) On No Underwriter shall have discovered and disclosed to the Company on or after the Applicable Time, there shall not have occurred prior to such Closing Date that any of the following: Registration Statement, the Pricing Disclosure Package or the Prospectus, or any amendment or supplement thereto, contains an untrue statement of a fact which, in the opinion of Underwriters’ Counsel, is material or omits to state a fact which, in the opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(i) a suspension or material limitation in trading in securities generally on the NYSE; (ii) a suspension or material limitation in trading in the Company’s securities on the NYSE; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Texas State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment As of the Representatives makes it impracticable or inadvisable to proceed with date of this Agreement, the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus;
(l) The Shares to be sold at such Time of Delivery Representative shall have been received a duly admitted for trading and quotation on the NYSE;
(m) The Company shall have obtained and delivered to the Underwriters executed copies of a lock-up agreement substantially in the form of Exhibit B hereto (a “Lock-Up Agreement”) from each person who is a director or executive officer of its directors and executive officers, the Selling Stockholders Company and each shareholder and other stockholder identified person or entity listed on Schedule IV hereto, in each case substantially in the form attached hereto as Annex I hereto;Exhibit B.
(nj) The Company At the Closing Date, the Shares shall have complied with the provisions been approved for listing on The Nasdaq Capital Market, subject only to official notice of Section 5(cissuance.
(k) hereof FINRA shall have confirmed that it has not raised any objection with respect to the furnishing of prospectuses on the New York Business Day next succeeding the date of this Agreement; and
(o) The Company fairness and the Selling Stockholders shall have furnished or caused to be furnished to you at such Time of Delivery certificates of officers reasonableness of the Company underwriting terms and arrangements relating to the Offering of the Selling Stockholders, respectively, satisfactory to you as to the accuracy of the representations and warranties of the Company and the Selling Stockholders, respectively, herein at and as of such Time of Delivery, as to the performance by the Company and the Selling Stockholders of all of their respective obligations hereunder to be performed at or prior to such Time of Delivery, and the Company shall have furnished or caused to be furnished certificates as to the matters set forth in subsections (a) of this Section and as to such other matters as you may reasonably requestShares.
(pl) The Company shall have furnished the Underwriters and Underwriters’ Counsel with such other certificates, opinions or caused to be other documents as they may have reasonably requested. If any of the conditions specified in this Section 7 shall not have been fulfilled when and as required by this Agreement, or if any of the certificates, opinions, written statements or letters furnished to you at such Time of Delivery a certificate the Representative or to Underwriters’ Counsel pursuant to this Section 7 shall not be satisfactory in form and substance to the Representative and to Underwriters’ Counsel, all obligations of the Executive Vice PresidentUnderwriters hereunder may be cancelled by the Representative at, Chief Financial Officer or at any time prior to, the Closing Date and Treasurer the obligations of the Underwriters to purchase the Additional Shares may be cancelled by the Representative at, or at any time prior to, any Additional Closing Date. Notice of such cancellation shall be given to the effect that:
(i) He is familiar with the internal accounting records of the CompanyCompany in writing or by telephone. Any such telephone notice shall be confirmed promptly thereafter in writing.
(ii) He has reviewed the “Recent Developments” section contained in both the Preliminary Prospectus and the Prospectus. The information presented in such Recent Developments section (A) has been prepared in good faith and based upon assumptions that he believes are reasonable and consistent with the operations of the Company and (B) is a fair estimate in all material respects of the Company’s total revenues and net income for the three months ended June 30, 2011 and has been derived from the Company’s accounting and/or financial records.
Appears in 1 contract
Conditions of Underwriters’ Obligations. The several obligations of the Underwriters hereunderto purchase and pay for the Firm Shares and the Additional Shares, as to the Shares to be delivered at each Time of Deliveryprovided herein, shall be subjectsubject to the accuracy of the representations and warranties of the Company herein contained, in their discretionas of the date hereof and as of the applicable Closing Date (for purposes of this Section 7, “Closing Date” shall refer to the Closing Date for the Firm Shares and any Additional Closing Date, if different, for the Additional Shares), to the condition that all representations and warranties and other statements of performance by the Company and of the Selling Stockholders herein are, at and as of such Time of Delivery, true and correct, the condition that the Company and the Selling Stockholders shall have performed all of its and their obligations hereunder theretofore to be performedhereunder, and to each of the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in a timely fashion in accordance with Section 5(a4(a) hereof; all material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433 under the Act; if the Company has elected to rely upon Rule 462(b) under the Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m., Washington, D.C. time, on the date of this Agreement; no stop order suspending the effectiveness of the Registration Statement or any part thereof post-effective amendment thereto, and no stop order suspending or preventing the use of any Preliminary Prospectus, any Issuer Free Writing Prospectus, or the Prospectus, shall have been issued by the Commission and no proceeding for that purpose proceedings therefor shall have been initiated or threatened by the Commission; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your the Representative’s reasonable satisfaction;; if the Company has elected to rely on Rule 462(b) under the Securities Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m. (New York City time) on the date of this Agreement; and all necessary regulatory or stock exchange approvals shall have been received.
(b) Xxxxx Xxxxx L.L.P.At the Closing Date, the Representative shall have received the written opinion and negative assurance statement of Xxxxxx, Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, shall have furnished to you such written opinion or opinionsCompany, dated such Time of Deliverythe Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to you, with respect to such matters as you may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;the Representative.
(c) Xxxxxx & Xxxxxx L.L.P.At the Closing Date, the Representative shall have received the written opinion of Cooley LLP, intellectual property counsel for the Company, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representative.
(d) At the Closing Date, the Representative shall have furnished to you their received the written opinionopinion and negative assurance statement of Underwriters’ Counsel, dated such Time of Deliverythe Closing Date and addressed to the Underwriters, in form and substance satisfactory to youthe Representative, with respect to the effect set forth on Annex IIissuance and sale of the Shares, the Registration Statement, the Pricing Disclosure Package, the Prospectus and such other matters as the Representative may require, and the Company shall have furnished to Underwriters’ Counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(de) Xxxxxxxx X. XxxxxAt the Closing Date, General Counsel the Representative shall have received a certificate of the Chief Executive Officer and Corporate Secretary principal financial officer of the Company, shall have furnished to you his written opinion, dated such Time of Deliverythe Closing Date, in form and substance satisfactory to you, the Representative as to the effect accuracy of the representations and warranties of the Company set forth on Annex IIIin Section 1 hereof as of the date hereof and as of the Closing Date, as to the performance by the Company of all of its obligations hereunder to be performed at or prior to the Closing Date, as to the matters set forth in subsections (a) and (h) of this Section 7, and as to such other matters as the Representative may reasonably request.
(ef) Xxxx Xxxxxxxxxx At the time this Agreement is executed and at the Closing Date, the Representative shall have received a comfort letter, from Ernst & Xxxxxxxxx Young LLP, special Indiana counsel independent registered public auditing firm for the Company, shall have furnished dated, respectively, as of the date of this Agreement and as of the Closing Date, addressed to you their written opinion, dated such Time of Delivery, the Underwriters and in form and substance satisfactory to youthe Underwriters and Underwriters’ Counsel, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the effect set forth on Annex IVfinancial statements and certain financial information contained in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
(fg) Xxxxxx LLPAt the time this Agreement is executed and at the Closing Date, counsel for each the Representative shall have received a certificate of the Selling Stockholdersprincipal financial officer, dated, respectively, as indicated in Schedule IIA hereto, shall have furnished to you their written opinion with respect to each of the Selling Stockholdersdate of this Agreement and as of the Closing Date, dated addressed to the First Time of Delivery, Underwriters and in form and substance satisfactory to youthe Underwriters and Underwriters’ Counsel, to the effect set forth in Annex V.
(g) Such local counsel as you shall reasonably require shall have furnished to you their written opinion with respect to each of certain financial information contained in the foreign Selling StockholdersRegistration Statement, dated the First Time of Delivery, in form Pricing Disclosure Package and substance satisfactory to you, to the effect set forth in Annex VIProspectus.
(h) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, UHY, LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, Flackman Xxxxxxx & Xxxxxx, P.A. shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) Neither the Company nor the Subsidiaries any Subsidiary shall have sustained sustained, (i) since the date of the latest audited financial statements included or incorporated by reference in the Registration Statement, the Pricing Prospectus Disclosure Package and the Prospectus, any material loss or interference with its business or properties from fire, explosion, flood flood, earthquake, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or court any legal or governmental action, order or decreeproceeding, other than as set forth or contemplated in the Registration Statement, the Pricing Disclosure Package and the Prospectus (exclusive of any supplement thereto); and (ii) since subsequent to the respective dates as of which information is given in the Registration Statement (exclusive of any amendment thereto subsequent to the date hereof) and the Pricing Disclosure Package and the Prospectus (exclusive of any supplement thereto), there shall not have been any material change in the capital stock or long-term or short-term debt of the Company or the Subsidiaries or any change, change or any development involving a prospective change, whether or not arising from transactions in or affecting the ordinary course of business, in the business, general affairs, management, condition (financial positionor otherwise), results of operations, stockholders’ equity equity, properties or results of operations prospects of the Company and the Subsidiaries, other than individually or taken as set forth or contemplated in the Pricing Prospectusa whole, the effect of which, in any such case described in clause (i) or (ii)above, is is, in the judgment of the Representatives Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery Offering on the terms and in the manner contemplated in the Registration Statement, the Pricing Disclosure Package and the Prospectus (exclusive of any such supplement).
(i) No Underwriter shall have discovered and disclosed to the Company on or prior to such Closing Date that any of the Registration Statement, the Pricing Disclosure Package or the Prospectus;, or any amendment or supplement thereto, contains an untrue statement of a fact which, in the opinion of Underwriters’ Counsel, is material or omits to state a fact which, in the opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(j) As of the date of this Agreement, the Representative shall have received a duly executed lock-up agreement substantially in the form of Exhibit B hereto (a “Lock-Up Agreement”) from each person who is a director or executive officer of the Company and each shareholder and other person or entity listed on Schedule IV hereto, in each case substantially in the form attached hereto as Exhibit B.
(k) On or after At the Applicable TimeClosing Date, there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the NYSE; (ii) a suspension or material limitation in trading in the Company’s securities on the NYSE; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Texas State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time shall have been approved for listing on Nasdaq, subject only to official notice of Delivery on the terms and in the manner contemplated in the Prospectus;issuance.
(l) The Shares FINRA shall not have raised any objection with respect to be sold at such Time the fairness and reasonableness of Delivery shall have been duly admitted for trading the underwriting terms and quotation on arrangements relating to the NYSE;Offering of the Shares.
(m) The Company shall have obtained furnished the Underwriters and delivered Underwriters’ Counsel with such other certificates, opinions or other documents as they may have reasonably requested. If any of the conditions specified in this Section 7 shall not have been fulfilled when and as required by this Agreement, or if any of the certificates, opinions, written statements or letters furnished to the Representative or to Underwriters’ Counsel pursuant to this Section 7 shall not be satisfactory in form and substance to the Representative and to Underwriters’ Counsel, all obligations of the Underwriters executed copies of a lock-up agreement from each of its directors and executive officershereunder may be cancelled by the Representative at, or at any time prior to, the Selling Stockholders Closing Date and each other stockholder identified on Schedule IV heretothe obligations of the Underwriters to purchase the Additional Shares may be cancelled by the Representative at, in the form attached as Annex I hereto;
(n) The Company or at any time prior to, any Additional Closing Date. Notice of such cancellation shall have complied with the provisions of Section 5(c) hereof with respect be given to the furnishing of prospectuses on the New York Business Day next succeeding the date of this Agreement; and
(o) The Company and the Selling Stockholders in writing or by telephone. Any such telephone notice shall have furnished or caused to be furnished to you at such Time of Delivery certificates of officers of the Company and of the Selling Stockholders, respectively, satisfactory to you as to the accuracy of the representations and warranties of the Company and the Selling Stockholders, respectively, herein at and as of such Time of Delivery, as to the performance by the Company and the Selling Stockholders of all of their respective obligations hereunder to be performed at or prior to such Time of Delivery, and the Company shall have furnished or caused to be furnished certificates as to the matters set forth confirmed promptly thereafter in subsections (a) of this Section and as to such other matters as you may reasonably requestwriting.
(p) The Company shall have furnished or caused to be furnished to you at such Time of Delivery a certificate of the Executive Vice President, Chief Financial Officer and Treasurer to the effect that:
(i) He is familiar with the internal accounting records of the Company.
(ii) He has reviewed the “Recent Developments” section contained in both the Preliminary Prospectus and the Prospectus. The information presented in such Recent Developments section (A) has been prepared in good faith and based upon assumptions that he believes are reasonable and consistent with the operations of the Company and (B) is a fair estimate in all material respects of the Company’s total revenues and net income for the three months ended June 30, 2011 and has been derived from the Company’s accounting and/or financial records.
Appears in 1 contract
Conditions of Underwriters’ Obligations. The obligations of the Underwriters hereunderto purchase and pay for the Firm Shares and the Additional Shares, as to the Shares to be delivered at each Time of Deliveryprovided herein, shall be subject, in their discretion, subject to the condition that all accuracy of the representations and warranties and other statements of the Company and of the Selling Stockholders herein are, at and as of such Time of Delivery, true and correct, the condition that the Company and the Selling Stockholders Stockholder herein contained, as of the date hereof and as of the Closing Date (for purposes of this Section 7 “Closing Date” shall have performed all refer to the Closing Date for the Firm Shares and any Additional Closing Date, if different, for the Additional Shares), to the absence from any certificates, opinions, written statements or letters furnished to you or to Underwriters’ Counsel pursuant to this Section 7 of its any misstatement or omission, to the performance by the Company and the Selling Stockholder of their respective obligations hereunder theretofore to be performedhereunder, and to each of the following additional conditions:
(a) The Registration Statement shall have become effective and all necessary regulatory or stock exchange approvals shall have been received not later than 5:30 P.M., New York time, on the date of this Agreement, or at such later time and date as shall have been consented to in writing by the Lead Manager; if the Company shall have elected to rely upon Rule 430A or Rule 434 under the Securities Act, the Prospectus shall have been filed with the Commission in a timely fashion in accordance with Section 5(a)(i) hereof and a form of the Prospectus containing information relating to the description of the Shares and the method of distribution and similar matters shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by period; and, at or prior to the rules and regulations under the Act and in accordance with Section 5(a) hereof; all material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433 under the Act; if the Company has elected to rely upon Rule 462(b) under the Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m., Washington, D.C. time, on the date of this Agreement; Closing Date no stop order suspending the effectiveness of the Registration Statement or any part post-effective amendment thereof shall have been issued and no proceeding for that purpose proceedings therefor shall have been initiated or threatened by the Commission; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction;.
(b) Xxxxx Xxxxx At the Closing Date, you shall have received the favorable written opinion of Vxxxxx & Exxxxx L.L.P., counsel for the Underwriters, shall have furnished to you such written opinion or opinionsCompany and the Selling Stockholder, dated such Time of Delivery, the Closing Date addressed to the Underwriters in the form and substance reasonably satisfactory to you, with respect to such matters attached hereto as you may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;Annex I.
(c) Xxxxxx & Xxxxxx L.L.P.At the Closing Date, you shall have received the favorable written opinion of the Sxxxxxxx Law Firm, L.L.C., counsel for the Company, shall have furnished to you their written opinionCompany and the Selling Stockholder, dated such Time of Delivery, in form and substance satisfactory to you, the Closing Date addressed to the effect set forth on Underwriters in the form attached hereto as Annex II.
(d) Xxxxxxxx X. Xxxxx, General Counsel and Corporate Secretary All proceedings taken in connection with the sale of the CompanyFirm Shares and the Additional Shares as herein contemplated shall be satisfactory in form and substance to the Lead Manager and to Underwriters’ Counsel, and the Underwriters shall have received from Underwriters’ Counsel a favorable written opinion, dated as of the Closing Date, with respect to the issuance and sale of the Shares, the Registration Statement and the Prospectus and such other related matters as the Lead Manager may require, and the Company shall have furnished to you his written opinion, dated Underwriters’ Counsel such Time documents as they may reasonably request for the purpose of Delivery, in form and substance satisfactory enabling them to you, to the effect set forth on Annex IIIpass upon such matters.
(e) Xxxx Xxxxxxxxxx & Xxxxxxxxx LLP, special Indiana counsel for At the Closing Date you shall have received a certificate of the Chief Executive Officer and Chief Financial Officer of the Company, shall have furnished to you their written opinion, dated such Time of Delivery, in form and substance satisfactory to you, the Closing Date to the effect set forth on Annex IV.
that (fi) Xxxxxx LLP, counsel for each of the Selling Stockholders, as indicated in Schedule IIA hereto, shall have furnished to you their written opinion with respect to each of the Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect condition set forth in Annex V.
subsection (ga) Such local counsel of this Section 7 has been satisfied, (ii) as you shall reasonably require shall have furnished to you their written opinion with respect to each of the foreign Selling Stockholdersdate hereof and as of the Closing Date, dated the First Time representations and warranties of Delivery, in form and substance satisfactory to you, to the effect Company set forth in Annex VI.
Section 1 hereof are accurate, (hiii) On the date as of the Prospectus at a time prior to the execution of this AgreementClosing Date all agreements, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement conditions and also at each Time of Delivery, UHY, LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) On the date obligations of the Prospectus at a time Company to be performed or complied with hereunder on or prior to the execution of this Agreementthereto have been duly performed or complied with, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, Flackman Xxxxxxx & Xxxxxx, P.A. shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(iiv) Neither the Company nor and the Subsidiaries shall have not sustained since the date of the latest audited financial statements included in the Pricing Prospectus any material loss or interference with its business their respective businesses or properties from fire, explosionflood, flood hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or court any legal or governmental actionproceeding, (v) no stop order suspending the effectiveness of the Registration Statement or decreeany post-effective amendment thereof has been issued and no proceedings therefor have been initiated or threatened by the Commission, other than (vi) there are no pro forma or as set forth or contemplated adjusted financial statements that are required to be included in the Pricing Registration Statement and the Prospectus pursuant to the Rules and Regulations that have not been included as required and (iivii) since subsequent to the respective dates as of which information is given in the Pricing Registration Statement and the Prospectus there has not been any material adverse change or any development involving a prospective material adverse change, whether or not arising from transactions in the ordinary course of business, in or affecting (x) the business, condition (financial or otherwise), results of operations, stockholders’ equity, properties or prospects of the Company and the Subsidiaries, individually or taken as a whole, or (y) the Offering or consummation of any of the other transactions contemplated by this Agreement.
(f) At the time this Agreement is executed and at the Closing Date, you shall have received a comfort letter from KPMG LLP, independent public accountants for the Company, dated, respectively, as of the date of this Agreement and as of the Closing Date, addressed to the Underwriters and in form and substance satisfactory to the Underwriters and Underwriters’ Counsel.
(g) At the time this Agreement is executed and at the Closing Date, you shall have received letters from each of Netherland Sxxxxx and Cxxxxxx, each being independent petroleum engineers for the Company, dated, respectively, as of the date of this Agreement and as of the Closing Date, addressed to the Underwriters and in form and substance satisfactory to the Underwriters and Underwriters’ Counsel, with respect to the estimated quantities of the Company’s reserves, the future net revenues from those reserves and their present value as set forth in the Registration Statement and such related matters as you shall reasonably request.
(h) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been any change in the capital stock or long-term debt of the Company or the Subsidiaries or any change, or any development involving a prospective change, whether or not arising from transactions in the ordinary course of business, in the business, condition (financial or affecting the general affairsotherwise), management, financial positionresults of operations, stockholders’ equity equity, properties or results of operations prospects of the Company and the Subsidiaries, individually or taken as a whole, including but not limited to the occurrence of any fire, flood, storm, explosion, accident or other than as set forth calamity at any of the properties owned or contemplated in leased by the Pricing ProspectusCompany or any of its Subsidiaries, the effect of which, in any such case described in clause (i) or (ii)above, is is, in the judgment of the Representatives Lead Manager, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery Offering on the terms and in the manner contemplated in the Pricing Prospectus;Prospectus (exclusive of any supplement).
(i) You shall have received a duly executed lock-up agreement from each person who is a director or officer of the Company, and the Selling Stockholder, in each case substantially in the form attached hereto as Annex III.
(j) At the Closing Date, the Shares shall have been approved for listing upon notice of issuance on the NYSE.
(k) On or after At the Applicable TimeClosing Date, there you shall not have occurred any received a certificate of an authorized representative of the following: (i) a suspension or material limitation in trading in securities generally on Selling Stockholder, dated the NYSE; (ii) a suspension or material limitation in trading in the Company’s securities on the NYSE; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Texas State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financialClosing Date, political or economic conditions in the United States or elsewhere, if to the effect of any such event specified in clause (iv) or (v) in that the judgment representations and warranties of the Representatives makes it impracticable Selling Stockholder set forth in Section 2 hereof are accurate and that the Selling Stockholder has complied with all agreements and satisfied all conditions on its part to be performed or inadvisable satisfied hereunder at or prior to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus;Closing Date.
(l) The Shares On or prior to be sold at such Time of Delivery the Closing Date, you shall have been duly admitted for trading received a properly completed and quotation on executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof) from the NYSE;Selling Stockholder.
(m) The Company shall have obtained furnished the Underwriters and delivered Underwriters’ Counsel with evidence reasonably satisfactory to the Underwriters executed copies of a lock-up agreement from each of its directors and executive officers, Underwriters’ Counsel that the Liens encumbering the Selling Stockholders and each other stockholder identified on Schedule IV hereto, in the form attached as Annex I hereto;Stockholder’s Shares have been released.
(n) The Company shall have complied furnished the Underwriters and Underwriters’ Counsel with such other certificates, opinions or other documents as they may have reasonably requested. If any of the provisions of conditions specified in this Section 5(c) hereof with respect to the furnishing of prospectuses on the New York Business Day next succeeding the date of 7 shall not have been fulfilled when and as required by this Agreement; and
(o) The Company and , or if any of the Selling Stockholders shall have furnished certificates, opinions, written statements or caused to be letters furnished to you at such Time of Delivery certificates of officers or to Underwriters’ Counsel pursuant to this Section 7 shall not be satisfactory in form and substance to the Lead Manager and to Underwriters’ Counsel, all obligations of the Company Underwriters hereunder may be cancelled by the Lead Manager at, or at any time prior to, the Closing Date and the obligations of the Selling StockholdersUnderwriters to purchase the Additional Shares may be cancelled by the Lead Manager at, respectivelyor at any time prior to, satisfactory to you as the Additional Closing Date. Notice of such cancellation shall be given to the accuracy of the representations and warranties of the Company and the Selling Stockholdersin writing, respectively, herein at and as of or by telephone. Any such Time of Delivery, as to the performance by the Company and the Selling Stockholders of all of their respective obligations hereunder to telephone notice shall be performed at or prior to such Time of Delivery, and the Company shall have furnished or caused to be furnished certificates as to the matters set forth confirmed promptly thereafter in subsections (a) of this Section and as to such other matters as you may reasonably requestwriting.
(p) The Company shall have furnished or caused to be furnished to you at such Time of Delivery a certificate of the Executive Vice President, Chief Financial Officer and Treasurer to the effect that:
(i) He is familiar with the internal accounting records of the Company.
(ii) He has reviewed the “Recent Developments” section contained in both the Preliminary Prospectus and the Prospectus. The information presented in such Recent Developments section (A) has been prepared in good faith and based upon assumptions that he believes are reasonable and consistent with the operations of the Company and (B) is a fair estimate in all material respects of the Company’s total revenues and net income for the three months ended June 30, 2011 and has been derived from the Company’s accounting and/or financial records.
Appears in 1 contract
Conditions of Underwriters’ Obligations. The several obligations of the Underwriters hereunderto purchase and pay for the Firm Shares and the Additional Shares, as to the Shares to be delivered at each Time of Deliveryprovided herein, shall be subject, in their discretion, subject to the condition that all accuracy of the representations and warranties and other statements of the Company and herein contained, as of the Selling Stockholders herein are, at date hereof and as of such Time the applicable Closing Date, and to the performance by each of Delivery, true and correct, the condition that the Company and the Selling Stockholders shall have performed of all of its and their obligations hereunder theretofore to be performedhereunder, and to each of the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in a timely fashion in accordance with Section 5(a4(a) hereof; all material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433 under the Act; if the Company has elected to rely upon Rule 462(b) under the Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m., Washington, D.C. time, on the date of this Agreement; no stop order suspending the effectiveness of the Registration Statement or any part thereof post-effective amendment thereto, and no stop order suspending or preventing the use of any Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus, shall have been issued by the Commission and no proceeding for that purpose proceedings therefore shall have been initiated or threatened by the Commission; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction;; if the Company has elected to rely on Rule 462(b) under the Securities Act, the Rule 462(b) Registration Statement shall have become effective by 9 a.m. (Eastern) on the date of this Agreement; and all necessary regulatory or stock exchange approvals shall have been received.
(b) Xxxxx Xxxxx L.L.P., counsel for At the Underwriters, shall have furnished to Closing Date you such written opinion or opinions, dated such Time of Delivery, in form and substance reasonably satisfactory to you, with respect to such matters as you may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;
(c) Xxxxxx the written opinions of Hunton & Xxxxxx L.L.P.Xxxxxxxx LLP, counsel for the Company, dated the Closing Date and addressed to the Underwriters, substantially in the form set forth in Annex I hereto.
(c) At the Closing Date, you shall have furnished to you their received the written opinionopinion of Underwriters’ Counsel, dated such Time of Deliverythe Closing Date and addressed to the Underwriters, in form and substance satisfactory to you, and the Company shall have furnished to Underwriters’ Counsel such documents as they may reasonably request for the effect set forth on Annex IIpurpose of enabling them to pass upon such matters.
(d) Xxxxxxxx X. Xxxxx, General Counsel At the Closing Date you shall have received a certificate of the Chief Executive Officer and Corporate Secretary Chief Financial Officer of the Company, shall have furnished to you his written opiniondated the Closing Date, dated such Time of Delivery, substantially in form set forth in Annex II hereto, as to (i) the accuracy of the representations and substance satisfactory warranties of the Company set forth in Section 1 hereof as of the Closing Date, (ii) the performance by the Company of all of its obligations hereunder to you, be performed at or prior to the effect Closing Date, (iii) the matters set forth on Annex IIIin subsections (g) and (h) of this Section 7, and (iv) such other matters as you may reasonably request.
(e) Xxxx Xxxxxxxxxx & Xxxxxxxxx LLP, special Indiana counsel for As of the date hereof you shall have received a certificate of the Chief Financial Officer of the Company, shall have furnished to you their written opiniondated the date hereof, dated such Time of Delivery, substantially in form and substance satisfactory to you, to the effect set forth on in Annex IVIII hereto.
(f) Xxxxxx At the time this Agreement is executed and at the Closing Date, you shall have received a comfort letter, from Deloitte & Touche LLP, counsel independent public accountants for each of the Selling StockholdersCompany, dated, respectively, as indicated in Schedule IIA hereto, shall have furnished to you their written opinion with respect to each of the Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex V.
(g) Such local counsel as you shall reasonably require shall have furnished to you their written opinion with respect to each of the foreign Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex VI.
(h) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time as of Deliverythe Closing Date, UHY, LLP shall have furnished addressed to you a letter or letters, dated the respective dates of delivery thereof, Underwriters and in form and substance reasonably satisfactory to you;the Underwriters and Underwriters’ Counsel.
(ig) On the date None of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, Flackman Xxxxxxx & Xxxxxx, P.A. shall have furnished to you a letter Company or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) Neither the Company nor the its Subsidiaries shall have sustained sustained, since the date of the latest audited financial statements included in the Pricing Prospectus Disclosure Package, any material loss or interference with its business or properties from fire, explosion, flood flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or court any legal or governmental action, order or decreeproceeding, other than as set forth or contemplated in the Pricing Prospectus and Disclosure Package (iiexclusive of any supplement thereto).
(h) since Subsequent to the respective dates as of which information is given in the Registration Statement (exclusive of any amendment thereto subsequent to the date hereof) and the Pricing Prospectus Disclosure Package (exclusive of any supplement thereto), there shall not have been (i) any change in the capital stock or long-term or short-term debt of the Company or the Subsidiaries any Subsidiary, or (ii) any change, change or any development involving a prospective change, whether or not arising from transactions in or affecting the ordinary course of business, in the business, general affairs, management, condition (financial positionor otherwise), results of operations or stockholders’ equity or results of operations of the Company and the Subsidiaries, other than in each case, individually or taken as set forth or contemplated in the Pricing Prospectusa whole, the effect of which, in any such case described in clause (i) or (ii)above, is is, in the judgment of the Representatives Representatives, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery Offering on the terms and in the manner contemplated in the Pricing Prospectus;Disclosure Package (exclusive of any such supplement).
(i) You shall have received a duly executed lock-up agreement in the form of Annex IV hereto from each of the persons listed in Schedule II hereto.
(j) At the Closing Date, the Shares shall have been approved for listing upon notice of issuance on the NYSE.
(k) On or after At the Applicable TimeClosing Date, there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the NYSE; (ii) a suspension or material limitation in trading in the Company’s securities on the NYSE; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Texas State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus;
(l) The Shares to be sold at such Time of Delivery FINRA shall have been duly admitted for trading and quotation on the NYSE;
(m) The Company shall have obtained and delivered to the Underwriters executed copies of a lock-up agreement from each of its directors and executive officers, the Selling Stockholders and each other stockholder identified on Schedule IV hereto, in the form attached as Annex I hereto;
(n) The Company shall have complied with the provisions of Section 5(c) hereof confirmed that it has not raised any objection with respect to the furnishing of prospectuses on the New York Business Day next succeeding the date of this Agreement; and
(o) The Company fairness and the Selling Stockholders shall have furnished or caused to be furnished to you at such Time of Delivery certificates of officers reasonableness of the Company underwriting terms and of arrangements for the Selling Stockholders, respectively, satisfactory to you as to the accuracy of the representations and warranties of the Company and the Selling Stockholders, respectively, herein at and as of such Time of Delivery, as to the performance by the Company and the Selling Stockholders of all of their respective obligations hereunder to be performed at or prior to such Time of Delivery, and the Company shall have furnished or caused to be furnished certificates as to the matters set forth in subsections (a) of this Section and as to such other matters as you may reasonably requestOffering.
(pl) The Company shall have furnished the Underwriters and Underwriters’ Counsel with such other certificates, opinions or caused to be furnished to you at such Time of Delivery a certificate other documents as they may have reasonably requested. If any of the Executive Vice Presidentconditions specified in this Section 7 shall not have been fulfilled when and as required by this Agreement, Chief Financial Officer all obligations of the Underwriters hereunder may be cancelled by the Representatives at, or at any time prior to, the Initial Closing Date and Treasurer the obligations of the Underwriters to purchase the Additional Shares may be cancelled by the Representatives at, or at any time prior to, the Additional Closing Date. Notice of such cancellation shall be given to the effect that:
(i) He is familiar with the internal accounting records of the CompanyCompany in writing or by telephone. Any such telephone notice shall be confirmed promptly thereafter in writing.
(ii) He has reviewed the “Recent Developments” section contained in both the Preliminary Prospectus and the Prospectus. The information presented in such Recent Developments section (A) has been prepared in good faith and based upon assumptions that he believes are reasonable and consistent with the operations of the Company and (B) is a fair estimate in all material respects of the Company’s total revenues and net income for the three months ended June 30, 2011 and has been derived from the Company’s accounting and/or financial records.
Appears in 1 contract
Conditions of Underwriters’ Obligations. The obligations of the several Underwriters hereunderto purchase and pay for the Shares as provided herein shall be subject to the accuracy, as to of the date hereof and the Closing Date and any later date on which Option Shares are to be delivered at each Time of Delivery, shall be subject, in their discretion, to the condition that all representations and warranties and other statements of the Company and of the Selling Stockholders herein are, at and as of such Time of Delivery, true and correct, the condition that the Company and the Selling Stockholders shall have performed all of its and their obligations hereunder theretofore to be performed, and the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(a) hereof; all material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433 under the Act; if the Company has elected to rely upon Rule 462(b) under the Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m., Washington, D.C. time, on the date of this Agreement; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction;
(b) Xxxxx Xxxxx L.L.P., counsel for the Underwriters, shall have furnished to you such written opinion or opinions, dated such Time of Delivery, in form and substance reasonably satisfactory to you, with respect to such matters as you may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;
(c) Xxxxxx & Xxxxxx L.L.P., counsel for the Company, shall have furnished to you their written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex II.
(d) Xxxxxxxx X. Xxxxx, General Counsel and Corporate Secretary of the Company, shall have furnished to you his written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex III.
(e) Xxxx Xxxxxxxxxx & Xxxxxxxxx LLP, special Indiana counsel for the Company, shall have furnished to you their written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex IV.
(f) Xxxxxx LLP, counsel for each of the Selling Stockholderspurchased, as indicated in Schedule IIA heretothe case may be, shall have furnished to you their written opinion with respect to each of the Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex V.
(g) Such local counsel as you shall reasonably require shall have furnished to you their written opinion with respect to each of the foreign Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex VI.
(h) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, UHY, LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, Flackman Xxxxxxx & Xxxxxx, P.A. shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) Neither the Company nor the Subsidiaries shall have sustained since the date of the latest audited financial statements included in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, other than as set forth or contemplated in the Pricing Prospectus and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or the Subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and the Subsidiaries, other than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Pricing Prospectus;
(k) On or after the Applicable Time, there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the NYSE; (ii) a suspension or material limitation in trading in the Company’s securities on the NYSE; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Texas State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus;
(l) The Shares to be sold at such Time of Delivery shall have been duly admitted for trading and quotation on the NYSE;
(m) The Company shall have obtained and delivered to the Underwriters executed copies of a lock-up agreement from each of its directors and executive officers, the Selling Stockholders and each other stockholder identified on Schedule IV hereto, in the form attached as Annex I hereto;
(n) The Company shall have complied with the provisions of Section 5(c) hereof with respect to the furnishing of prospectuses on the New York Business Day next succeeding the date of this Agreement; and
(o) The Company and the Selling Stockholders shall have furnished or caused to be furnished to you at such Time of Delivery certificates of officers of the Company and of the Selling Stockholders, respectively, satisfactory to you as to the accuracy of the representations and warranties of the Company and the Selling StockholdersShareholders herein, respectively, herein at and as of such Time of Delivery, as to the performance by the Company and the Selling Stockholders of all Shareholders of their respective obligations hereunder and to the following additional conditions:
(a) The Registration Statement shall have become effective not later than 4:00 P.M., Houston time, on the date following the date of this Agreement, or such later date as shall be consented to in writing by you; and no stop order suspending the effectiveness thereof shall have been issued and no proceedings for that purpose shall have been initiated or, to the knowledge of the Company, any Selling Shareholder or any Underwriter, threatened by the Commission, and any request of the Commission for additional information (to be performed at included in the Registration Statement or prior the Prospectus or otherwise) shall have been complied with to such Time the reasonable satisfaction of DeliveryUnderwriters' Counsel.
(b) All corporate proceedings and other legal matters in connection with this Agreement, the form of Registration Statement and the Prospectus, and the Company registration, authorization, issue, sale and delivery of the Shares, shall have been reasonably satisfactory to Underwriters' Counsel, and such counsel shall have been furnished with such papers and information as they may reasonably have requested to enable them to pass upon the matters referred to in this Section.
(c) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, or caused any later date on which Option Shares are to be furnished certificates purchased, as to the matters case may be, there shall not have been any change in the condition (financial or otherwise), earnings, operations or business of the Company and its subsidiaries considered as one enterprise from that set forth in subsections (a) the Registration Statement or Prospectus, which, in your sole judgment, is material and adverse and that makes it, in your sole judgment, impracticable or inadvisable to proceed with the public offering of this Section and the Shares as to such other matters as you may reasonably requestcontemplated by the Prospectus.
(pd) The Company You shall have furnished or caused received on the Closing Date and on any later date on which Option Shares are to be furnished purchased, as the case may be, the following opinion of counsel for the Company and the Selling Shareholders, dated the Closing Date or such later date on which Option Shares are to you at such Time of Delivery a certificate be purchased addressed to the Underwriters and with reproduced copies or signed counterparts thereof for each of the Executive Vice PresidentUnderwriters, Chief Financial Officer and Treasurer to the effect that:
(i) He The Company has been duly incorporated and is familiar with validly existing as a corporation in good standing under the internal accounting records laws of the Company.jurisdiction of its incorporation;
(ii) He The Company has reviewed the “Recent Developments” section contained corporate power and authority to own, lease and operate its properties and to conduct its business as described in both the Preliminary Prospectus and the Prospectus. ;
(iii) The information presented in such Recent Developments section (A) has been prepared Company is duly qualified to do business as a foreign corporation and is in good faith and based upon assumptions that he believes are reasonable and consistent with standing in each jurisdiction, if any, in which the ownership or leasing of its properties or the conduct of its business requires such qualification, except where the failure to be so qualified or be in good standing would not have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company and its subsidiaries considered as one enterprise. To such counsel's knowledge, the Company does not own or control, directly or indirectly, any corporation, association or other entity other than BindView Development GmbH;
(Biv) The authorized, issued and outstanding capital stock of the Company is as set forth in the Prospectus under the caption "Capitalization" as of the dates stated therein, the issued and outstanding shares of capital stock of the Company (including the Selling Shareholder Shares) have been duly and validly issued and are fully paid and nonassessable, and, to such counsel's knowledge, will not have been issued in violation of or subject to any preemptive right, co-sale right, registration right, right of first refusal or other similar right;
(v) All issued and outstanding shares of capital stock of BindView Development GmbH are owned by the Company and have been duly authorized and validly issued and are fully paid and nonassessable, and, to such counsel's knowledge, have not been issued in violation of or subject to any preemptive right, co-sale right, registration right, right of first refusal or other similar right and are owned by the Company free and clear of any pledge, lien, security interest, encumbrance, claim or equitable interest;
(vi) The Firm Shares or the Option Shares, as the case may be, to be issued by the Company pursuant to the terms of this Agreement have been duly authorized and, upon issuance and delivery against payment therefor in accordance with the terms hereof, will be duly and validly issued and fully paid and nonassessable, and, to such counsel's knowledge, will not have been issued in violation of or subject to any preemptive right, co-sale right, registration right, right of first refusal or other similar right.
(vii) The Company has the corporate power and authority to enter into this Agreement and to issue, sell and deliver to the Underwriters the Shares to be issued and sold by it hereunder;
(viii) This Agreement has been duly authorized by all necessary corporate action on the part of the Company and has been duly executed and delivered by the Company and, assuming due authorization, execution and delivery by you, is a fair estimate valid and binding agreement of the Company, enforceable in accordance with its terms, except insofar as indemnification provisions may be limited by applicable law and except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting creditors' rights generally or by general equitable principles;
(ix) The Registration Statement has become effective under the Act and, to such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Act;
(x) The Registration Statement and the Prospectus, and each amendment or supplement thereto (other than the financial statements (including supporting schedules) and financial data derived therefrom as to which such counsel need express no opinion), as of the effective date of the Registration Statement, complied as to form in all material respects with the requirements of the Act and the applicable rules and Regulations;
(xi) The statements in the Prospectus under the caption "Risk Factors - Shares Eligible for Future Sale," "Management - Incentive Stock Option Plan," "Management - Stock Option Plan," "Management - 1997 Incentive Plan," "Management - Omnibus Incentive Plan," "Management - 1998 Non-Employee Director Stock Option Plan," "Management - 401(k) Plan," "Management - Employment Agreements," "Certain Transactions," "Description of Capital Stock," "Shares Eligible for Future Sale," and "Underwriting," to the extent that they constitute matters of law or legal conclusions, have been reviewed by such counsel and are fair summaries of such matters and conclusions; and the forms of certificates evidencing the Common Stock and filed as exhibits to the Registration Statement comply with Texas law;
(xii) The description in the Registration Statement and the Prospectus of the charter and bylaws of the Company and of statutes are accurate and fairly present the information required to be presented by the Act and the applicable Rules and Regulations;
(xiii) To such counsel's knowledge, there are no agreements, contracts, leases or documents to which the Company is a party of a character required to be described or referred to in the Registration Statement or Prospectus or to be filed as an exhibit to the Registration Statement which are not described or referred to therein or filed as required;
(xiv) The performance of this Agreement and the consummation of the transactions herein contemplated (other than performance of the Company’s total revenues and net income for the three months ended June 30's indemnification obligations hereunder, 2011 and has been derived from concerning which no opinion need be expressed) will not (a) result in any violation of the Company’s accounting and/or financial records.'s charter or bylaws or (b) to such counsel's knowledge, result in a material breach or violation of any of the terms and provisions of, or constitute a default under, any bond, debenture, note or other evidence of indebtedness, or any lease, contract, indenture, mortgage, deed of trust, loan agreement, joint venture or other agreement or instrument known to such counsel to which the Company is a party or by which its properties are bound, or any applicable statute, Rule or regulation known to such counsel or, to such counsel's knowledge, any order, writ or decree of any court, government or governmental agency or body having jurisdiction over the Company or any of its subsidiaries, or over any of their properties or operations;
(xv) No consent, approval, authorization or order of or qualification with any court, government or governmental agency or body having jurisdiction over the Company or any of its subsidiaries, or over any of their properties or operations is necessary in connection with the consummation by the Company of the transactions herein contemplated, except such as have been obtained under the Act or such as may be required under state or other securities or Blue Sky laws in connection with the purchase and the distribution of the Shares by the Underwriters;
(xvi) To such counsel's knowledge, there are no legal or governmental proceedings pending or threatened against the Company or any of its subsidiaries of a character required to be disclosed in the Registration Statement or the Prospectus by the Act or the Rules and Regulations, other than those described therein;
(xvii) To such counsel's knowledge, neither the Company nor any of its subsidiaries is presently (a) in material violation of its respective charter or bylaws, or (b) in material breach of any applicable statute, Rule or regulation known to such counsel or, to such counsel's knowledge, any order, writ or decree of any court or governmental agency or body having jurisdiction over the Company or any of its subsidiaries, or over any of their properties or operations;
(xviii) To such counsel's knowledge, except as set forth in the Registration Statement and Prospectus, no holders of Common Stock or other securities of the Company have registration rights with respect to securities of the Company and, except as set forth in the Registration Statement and Prospectus, all holders of securities of the Company having rights known to such counsel to registration of such shares of Common Stock or other securities, because of the filing of the Registration Statement by the Company have, with respect to the offering contemplated thereby, waived such rights or such rights have expired by reason of lapse of time
Appears in 1 contract
Conditions of Underwriters’ Obligations. The several obligations of the Underwriters hereunderto purchase and pay for the Firm Shares and the Additional Shares, as to the Shares to be delivered at each Time of Deliveryprovided herein, shall be subjectsubject to the accuracy of the representations and warranties of the Company herein contained, in their discretionas of the date hereof and as of the applicable Closing Date (for purposes of this Section 7, “Closing Date” shall refer to the Closing Date for the Firm Shares and any Additional Closing Date, if different, for the Additional Shares), to the condition that all representations and warranties and other statements of performance by the Company and of the Selling Stockholders herein are, at and as of such Time of Delivery, true and correct, the condition that the Company and the Selling Stockholders shall have performed all of its and their obligations hereunder theretofore to be performedhereunder, and to each of the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in a timely fashion in accordance with Section 5(a4(a) hereof; all material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433 under the Act; if the Company has elected to rely upon Rule 462(b) under the Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m., Washington, D.C. time, on the date of this Agreement; no stop order suspending the effectiveness of the Registration Statement or any part thereof post-effective amendment thereto, and no stop order suspending or preventing the use of any Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus, shall have been issued by the Commission and no proceeding for that purpose proceedings therefor shall have been initiated or threatened by the Commission; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction;; if the Company has elected to rely on Rule 462(b) under the Securities Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m. (New York City time) on the date of this Agreement; and all necessary regulatory or stock exchange approvals shall have been received.
(bi) Xxxxx Xxxxx L.L.P.At the Closing Date you shall have received the written opinion and negative assurance statement of Hxxxx Lovells US LLP, counsel for the Underwriters, shall have furnished to you such written opinion or opinionsCompany, dated such Time of Deliverythe Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to you; (ii) At the Closing Date, with respect to such matters as you may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;
(c) Xxxxxx & Xxxxxx L.L.P.the written opinion of Hxxxx Lovells US LLP, intellectual property counsel for the Company, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to you.
(c) At the Closing Date you shall have furnished to you their received the written opinionopinion of Wxxxx Xxxx LLP, intellectual property counsel for the Company, dated such Time the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to you.
(d) As the Closing Date you shall have received the written opinion of DeliveryMxxxxx Ferro Wxxxxxxxx & Mxxxx, intellectual property counsel for the Company, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to you.
(e) At the Closing Date, you shall have received the written opinion and negative assurance statement of Underwriters’ Counsel, dated the Closing Date and addressed to the Underwriters, in form and substance satisfactory to you, with respect to the effect set forth on Annex IIissuance and sale of the Shares, the Registration Statement, the Pricing Disclosure Package, the Prospectus and such other matters as you may require, and the Company shall have furnished to Underwriters’ Counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(df) Xxxxxxxx X. Xxxxx, General Counsel At the Closing Date you shall have received a certificate of the Chief Executive Officer and Corporate Secretary Chief Financial Officer of the Company, shall have furnished to you his written opinion, dated such Time of Deliverythe Closing Date, in form and substance satisfactory to you, as to the effect accuracy of the representations and warranties of the Company set forth on Annex IIIin Section 1 hereof as of the date hereof and as of the Closing Date, as to the performance by the Company of all of its obligations hereunder to be performed at or prior to the Closing Date, as to the matters set forth in subsections (a) and (h) of this Section 7, and as to such other matters as you may reasonably request.
(eg) Xxxx Xxxxxxxxxx At the time this Agreement is executed and at the Closing Date, you shall have received a comfort letter, from Deloitte & Xxxxxxxxx Touche LLP, special Indiana counsel independent registered public auditing firm for the Company, shall have furnished dated, respectively, as of the date of this Agreement and as of the Closing Date, addressed to you their written opinion, dated such Time of Delivery, the Underwriters and in form and substance satisfactory to youthe Underwriters and Underwriters’ Counsel, to the effect set forth on Annex IV.
(f) Xxxxxx LLP, counsel for each containing statements and information of the Selling Stockholders, as indicated type ordinarily included in Schedule IIA hereto, shall have furnished accountants’ “comfort letters” to you their written opinion underwriters with respect to each of the Selling Stockholdersfinancial statements and certain financial information contained in the Registration Statement, dated the First Time of Delivery, in form Pricing Disclosure Package and substance satisfactory to you, to the effect set forth in Annex V.
(g) Such local counsel as you shall reasonably require shall have furnished to you their written opinion with respect to each of the foreign Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex VIProspectus.
(h) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, UHY, LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, Flackman Xxxxxxx & Xxxxxx, P.A. shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) Neither the Company nor the Subsidiaries any Subsidiary shall have sustained sustained, since the date of the latest audited financial statements included or incorporated by reference in the Registration Statement, the Pricing Prospectus Disclosure Package and the Prospectus, any material loss or interference with its business or properties from strike, fire, explosion, flood flood, earthquake, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or court any legal or governmental action, order or decreeproceeding, other than as set forth or contemplated in the Registration Statement, the Pricing Disclosure Package and the Prospectus (exclusive of any supplement thereto); and (ii) since subsequent to the respective dates as of which information is given in the Registration Statement (exclusive of any amendment thereto subsequent to the date hereof) and the Pricing Disclosure Package and the Prospectus (exclusive of any supplement thereto), there shall not have been any change in the capital stock or long-term or short-term debt of the Company or the Subsidiaries any Subsidiary or any change, change or any development involving a prospective change, whether or not arising from transactions in or affecting the ordinary course of business, in the earnings, business, general affairs, management, condition (financial positionor otherwise), results of operations, stockholders’ equity equity, assets, liability, properties or results of operations prospects of the Company and the Subsidiaries, other than individually or taken as set forth or contemplated in the Pricing Prospectusa whole, the effect of which, in any such case described in clause (i) or (ii)above, is is, in the judgment of the Representatives Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery Offering on the terms and in the manner contemplated in the Registration Statement, the Pricing Prospectus;Disclosure Package and the Prospectus (exclusive of any such supplement).
(ki) On No Underwriter shall have discovered and disclosed to the Company on or after the Applicable Time, there shall not have occurred prior to such Closing Date that any of the following: (i) Registration Statement, the Pricing Disclosure Package or the Prospectus, or any amendment or supplement thereto, contains an untrue statement of a suspension or material limitation in trading in securities generally on the NYSE; (ii) a suspension or material limitation in trading fact which, in the Company’s securities on the NYSE; (iii) opinion of Underwriters’ Counsel, is material or omits to state a general moratorium on commercial banking activities declared by either Federal or New York or Texas State authorities or a material disruption in commercial banking or securities settlement or clearance services fact which, in the United States; opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(ivj) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment As of the Representatives makes it impracticable date of this Agreement, the Representative shall have received a duly executed Lock-Up Agreement from each person who is a director or inadvisable to proceed with the public offering or the delivery executive officer of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus;
(l) The Shares to be sold at such Time of Delivery shall have been duly admitted for trading and quotation on the NYSE;
(m) The Company shall have obtained and delivered to the Underwriters executed copies of a lock-up agreement from each of its directors and executive officers, the Selling Stockholders and each shareholder and other stockholder identified person or entity listed on Schedule IV hereto, in each case substantially in the form attached hereto as Annex I hereto;Exhibit B.
(k) At the Closing Date, the Shares shall have been approved for quotation on Nasdaq, subject only to official notice of issuance.
(l) The Chief Financial Officer of the Company shall have furnished to the Representative a certificate, dated as of the date of this Agreement and on each Closing Date, in form and substance reasonably satisfactory to you.
(m) If a filing has been made with FINRA, FINRA shall have raised no objection with respect to the fairness and reasonableness of the underwriting terms and arrangements relating to the Offering of the Shares.
(n) The Company shall have complied furnished the Underwriters and Underwriters’ Counsel with such other certificates, opinions or other documents as they may have reasonably requested. If any of the provisions of conditions specified in this Section 5(c) hereof with respect to the furnishing of prospectuses on the New York Business Day next succeeding the date of 7 shall not have been fulfilled when and as required by this Agreement; and
(o) The Company and , or if any of the Selling Stockholders shall have furnished certificates, opinions, written statements or caused to be letters furnished to you at such Time of Delivery certificates of officers or to Underwriters’ Counsel pursuant to this Section 7 shall not be satisfactory in form and substance to the Representative and to Underwriters’ Counsel, all obligations of the Company Underwriters hereunder may be cancelled by the Representative at, or at any time prior to, the Closing Date and the obligations of the Selling StockholdersUnderwriters to purchase the Additional Shares may be cancelled by the Representative at, respectivelyor at any time prior to, satisfactory to you as any Additional Closing Date. Notice of such cancellation shall be given to the accuracy of the representations and warranties of the Company and the Selling Stockholders, respectively, herein at and as of in writing or by telephone. Any such Time of Delivery, as to the performance by the Company and the Selling Stockholders of all of their respective obligations hereunder to telephone notice shall be performed at or prior to such Time of Delivery, and the Company shall have furnished or caused to be furnished certificates as to the matters set forth confirmed promptly thereafter in subsections (a) of this Section and as to such other matters as you may reasonably requestwriting.
(p) The Company shall have furnished or caused to be furnished to you at such Time of Delivery a certificate of the Executive Vice President, Chief Financial Officer and Treasurer to the effect that:
(i) He is familiar with the internal accounting records of the Company.
(ii) He has reviewed the “Recent Developments” section contained in both the Preliminary Prospectus and the Prospectus. The information presented in such Recent Developments section (A) has been prepared in good faith and based upon assumptions that he believes are reasonable and consistent with the operations of the Company and (B) is a fair estimate in all material respects of the Company’s total revenues and net income for the three months ended June 30, 2011 and has been derived from the Company’s accounting and/or financial records.
Appears in 1 contract
Sources: Underwriting Agreement (EyePoint Pharmaceuticals, Inc.)
Conditions of Underwriters’ Obligations. The several obligations of the Underwriters hereunderto purchase and pay for the Firm Shares and the Additional Shares, as to the Shares to be delivered at each Time of Deliveryprovided herein, shall be subjectsubject to the accuracy of the representations and warranties of the Company herein contained, in their discretionas of the date hereof and as of the Closing Date (for purposes of this Section 7, “Closing Date” shall refer to the Closing Date for the Firm Shares and any Additional Closing Date, if different, for the Additional Shares), to the condition that all representations and warranties and other absence from any certificates, opinions, written statements or letters furnished to the Representatives or to the Underwriters’ US Counsel pursuant to this Section 7 of any misstatement or omission, to the performance by the Company and of the Selling Stockholders herein are, at and as of such Time of Delivery, true and correct, the condition that the Company and the Selling Stockholders shall have performed all of its and their obligations hereunder theretofore to be performedhereunder, and to each of the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in a timely fashion in accordance with Section 5(a4(a) hereof; all material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433 under the Act; if the Company has elected to rely upon Rule 462(b) under the Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m., Washington, D.C. time, on the date of this Agreement; no stop order suspending the effectiveness of the Registration Statement, the ADS Registration Statement or any part thereof post-effective amendment thereto, and no stop order suspending or preventing the use of any Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus, shall have been issued by the Commission and no proceeding for that purpose proceedings therefor shall have been initiated or threatened by the Commission; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your the Representatives’ reasonable satisfaction;; if the Company has elected to rely on Rule 462(b) under the Securities Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m. (Washington, D.C. time) on the date of this Agreement; and all necessary regulatory or stock exchange approvals shall have been received.
(b) Xxxxx Xxxxx L.L.P., counsel for At the Underwriters, shall have furnished to you such written opinion or opinions, dated such Time of Delivery, in form and substance reasonably satisfactory to you, with respect to such matters as you may reasonably request, and such counsel Closing Date the Representatives shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;
(c) Xxxxxx the written opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxxxx L.L.P.Xxxx, Hong Kong, U.S. counsel for the Company, shall have furnished dated the Closing Date and addressed to you their written opinion, dated such Time of Deliverythe Underwriters, in form and substance satisfactory to you, to the effect set forth on Annex IIRepresentatives.
(dc) Xxxxxxxx X. XxxxxAt the Closing Date the Representatives shall have received the written opinion of Xxxxxxx Xxxx & Xxxxxxx, General Counsel and Corporate Secretary of Cayman Islands counsel for the Company, shall have furnished dated the Closing Date and addressed to you his written opinion, dated such Time of Deliverythe Underwriters, in form and substance satisfactory to you, to the effect set forth on Annex IIIRepresentatives.
(ed) Xxxx Xxxxxxxxxx & Xxxxxxxxx LLPAt the Closing Date the Representatives shall have received the written opinion of Tian Yuan Law Firm, special Indiana PRC counsel for the Company, shall have furnished dated the Closing Date and addressed to you their written opinion, dated such Time of Deliverythe Underwriters, in form and substance satisfactory to you, to the effect set forth on Annex IVRepresentatives.
(fe) Xxxxxx LLPAt the Closing Date the Representatives shall have received the written opinion of Xxxxxxx Xxxx & Xxxxxxx, British Virgin Islands counsel for each of the Selling Stockholders, as indicated in Schedule IIA hereto, shall have furnished to you their written opinion with respect to each of the Selling StockholdersCompany, dated the First Time of DeliveryClosing Date and addressed to the Underwriters, in form and substance satisfactory to you, to the effect set forth in Annex V.Representatives.
(gf) Such local counsel as you shall reasonably require At the Closing Date the Representatives shall have furnished to you their received the written opinion with respect to each of Xxxxx, Xxxxxx & Xxxxxx, counsel for the foreign Selling StockholdersDepositary, dated the First Time of DeliveryClosing Date and addressed to the Underwriters, in form and substance satisfactory to you, to the effect set forth in Annex VIRepresentatives.
(hg) On All proceedings taken in connection with the date sale of the Prospectus at a time prior Firm Shares and the Additional Shares as herein contemplated shall be satisfactory in form and substance to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment Representatives and to the Registration Statement filed subsequent Underwriters’ US Counsel, and the Underwriters shall have received from each of the Underwriters’ US Counsel and King & Wood (the “Underwriters’ PRC Counsel”) a written opinion, dated as of the Closing Date and addressed to the date of this Agreement and also at each Time of Delivery, UHY, LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereofUnderwriters, in form and substance satisfactory to you;
(i) On the date Representatives, with respect to the issuance and sale of the Prospectus at a time prior to Shares and the execution of this AgreementADSs, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to Statement, the date of this Agreement Pricing Disclosure Package, the Prospectus and also at each Time of Deliverysuch other related matters as the Representatives may require, Flackman Xxxxxxx & Xxxxxx, P.A. and the Company shall have furnished to you the Underwriters’ US Counsel and the Underwriters’ PRC Counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(h) At the Closing Date the Representatives shall have received a letter or letterscertificate of the Chief Executive Officer and the Chief Financial Officer of the Company, dated the respective dates of delivery thereofClosing Date, in form and substance satisfactory to you;the Representatives, as to the accuracy of the representations and warranties of the Company set forth in Section 1 hereof as of the date hereof and as of the Closing Date, as to the performance by the Company of all of its obligations hereunder to be performed at or prior to the Closing Date, as to the matters set forth in subsections (a) and (j) of this Section 7, and as to such other matters as the Representatives may reasonably request.
(i) At the time this Agreement is executed and at the Closing Date, the Representatives shall have received comfort letters from PwC, independent registered public accounting firm for the Company, dated, respectively, as of the date of this Agreement and as of the Closing Date, addressed to the Underwriters and in form and substance satisfactory to the Underwriters and the Underwriters’ US Counsel.
(i) Neither the Company nor the Subsidiaries an Subsidiary shall have sustained sustained, since the date of the latest audited financial statements included in the Pricing Prospectus Prospectus, any material loss or interference with its business or properties from fire, explosion, flood flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or court any legal or governmental action, order or decreeproceeding, other than as set forth or contemplated in the Pricing Prospectus (exclusive of any supplement thereto); and (ii) since subsequent to the respective dates as of which information is given in the Registration Statement (exclusive of any amendment thereto subsequent to the date hereof) and the Pricing Prospectus (exclusive of any supplement thereto), there shall not have been any change in the capital stock or long-term or short-term debt of the Company or the Subsidiaries any Subsidiary or any change, change or any development involving a prospective change, whether or not arising from transactions in or affecting the ordinary course of business, in the business, general affairs, management, condition (financial positionor otherwise), results of operations, stockholders’ equity equity, properties or results of operations prospects of the Company and the Subsidiaries, other than taken as set forth or contemplated in the Pricing Prospectusa whole, the effect of which, in any such case described in clause (i) or (ii)above, is is, in the judgment of the Representatives Representatives, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery Offering on the terms and in the manner contemplated in the Pricing Prospectus;Prospectus (exclusive of any such supplement).
(k) On or after the Applicable Time, there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the NYSE; (ii) a suspension or material limitation in trading in the Company’s securities on the NYSE; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Texas State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the The Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus;
(l) The Shares to be sold at such Time of Delivery shall have been received a duly admitted for trading and quotation on the NYSE;
(m) The Company shall have obtained and delivered to the Underwriters executed copies of a lock-up agreement from each director, officer and shareholder of its directors and executive officers, the Selling Stockholders and each other stockholder identified Company listed on Schedule IV II hereto, in each case substantially in the form attached hereto as Annex I hereto;VI.
(l) At the Closing Date, the ADSs shall have been approved for listing on the Nasdaq.
(m) At the Closing Date, the NASD shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements for the Offering.
(n) The Company No action shall have complied with been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the provisions Closing Date, prevent the issuance or sale of Section 5(c) hereof with respect to the furnishing Shares or the corresponding ADSs; and no injunction or order of prospectuses on any federal, state or foreign court shall have been issued that would, as of the New York Business Day next succeeding Closing Date, prevent the date issuance or sale of this Agreement; andthe Shares or the corresponding ADSs.
(o) The Company and the Selling Stockholders shall have furnished or caused to be furnished to you at such Time of Delivery certificates of officers of the Company and of Underwriters, the Selling Stockholders, respectively, satisfactory to you as to the accuracy of the representations and warranties of the Company Underwriters’ US Counsel and the Selling Stockholders, respectively, herein at and as of such Time of Delivery, as to the performance by the Company and the Selling Stockholders of all of their respective obligations hereunder to be performed at or prior to such Time of Delivery, and the Company shall have furnished or caused to be furnished certificates as to the matters set forth in subsections (a) of this Section and as to Underwriters’ PRC Counsel with such other matters certificates, opinions or other documents as you they may have reasonably requestrequested.
(p) The All of the preferred shares of the Company shall have furnished converted or caused to be furnished to you at such Time of Delivery a certificate of the Executive Vice President, Chief Financial Officer and Treasurer to the effect that:
(i) He is familiar been exchanged into Ordinary Shares in accordance with the internal accounting records terms of the Companysuch preferred shares.
(iiq) He has reviewed No Issuer Free Writing Prospectus, Prospectus or amendment or supplement to the “Recent Developments” section contained in both Registration Statement, the Preliminary ADS Registration Statement or the Prospectus shall have been filed to which the Representatives object.
(r) The Depositary shall have delivered to the Company at such Closing Date certificates satisfactory to the Representatives evidencing the deposit with the Depositary or its nominee of the Shares being so deposited against issuance of ADRs evidencing the ADSs to be delivered by the Company at the Closing Date, and the Prospectusexecution, countersignature (if applicable), issuance and delivery of ADRs evidencing such ADSs pursuant to the Deposit Agreement. The information presented in such Recent Developments section (A) has been prepared in good faith and based upon assumptions that he believes are reasonable and consistent with the operations If any of the Company conditions specified in this Section 7 shall not have been fulfilled when and (B) is a fair estimate in all material respects as required by this Agreement, or if any of the Company’s total revenues certificates, opinions, written statements or letters furnished to the Lead Managers, the Underwriters’ US Counsel or the Underwriters’ PRC Counsel pursuant to this Section 7 shall not be satisfactory in form and net income for substance to the three months ended June 30Lead Managers, 2011 the Underwriters’ US Counsel or the Underwriters’ PRC Counsel, all obligations of the Underwriters hereunder may be cancelled by the Lead Managers at, or at any time prior to, the Closing Date, and has been derived from the Company’s accounting and/or financial recordsobligations of the Underwriters to purchase the Additional Shares may be cancelled by the Lead Managers at, or at any time prior to, the Additional Closing Date. Notice of such cancellation shall be given to the Company in writing or by telephone. Any such telephone notice shall be confirmed promptly thereafter in writing.
Appears in 1 contract
Sources: Underwriting Agreement (JA Solar Holdings Co., Ltd.)
Conditions of Underwriters’ Obligations. The several --------------------------------------- obligations of the Underwriters hereunder, as to purchase the Shares pursuant to the Shares terms hereof are subject to be delivered at each Time the accuracy of Delivery, shall be subject, in their discretionthe representations and warranties on the part of the Company herein contained, to the condition that all representations and warranties and other accuracy of the statements of the Company and of Company's officers made in any certificate furnished pursuant to the Selling Stockholders herein areprovisions hereof, at and as of such Time of Delivery, true and correct, to the condition that performance by the Company and the Selling Stockholders shall have performed of all of its covenants and their other obligations hereunder theretofore set forth herein and to be performed, and the following additional further conditions:
(a) The Prospectus shall have been filed with At the Commission pursuant to Rule 424(bClosing Time (i) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(a) hereof; all material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433 under the Act; if the Company has elected to rely upon Rule 462(b) under the Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m., Washington, D.C. time, on the date of this Agreement; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been under the 1933 Act or proceedings therefor initiated or threatened by the Commission; no stop order suspending , (ii) the rating assigned by Xxxxx'x Investors Service, Inc. and Standard & Poor's Corporation to any long-term debt securities or preventing the use preferred stock of the Prospectus or any Issuer Free Writing Prospectus Company shall not have been initiated or threatened by lowered since the Commission; execution of this Agreement and all requests for additional information on (iii) there shall not have come to the part Representatives' attention any facts that would cause the Representatives to believe that the Prospectus, together with the applicable Prospectus Supplement, at the time it was required to be delivered to a purchaser of the Commission shall have been complied with Shares, contained an untrue statement of a material fact or omitted to your reasonable satisfaction;state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at such time, not misleading.
(b) Xxxxx Xxxxx L.L.P.At the Closing Time, counsel for the Underwriters, Representatives shall have furnished to you such received:
(1) The written opinion or opinionsopinion, dated such Time as of Deliverythe Closing Time, in form and substance reasonably satisfactory to you, with respect to such matters as you may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;
(c) Xxxxxx & Xxxxxx L.L.P., of counsel for the Company, shall have furnished to you their written opinion, dated such Time of Delivery, in form and substance satisfactory to youthe Representatives, to the effect set forth on Annex IIthat:
(i) The Company is a corporation duly incorporated and validly existing in good standing under the laws of the State of Delaware.
(dii) Xxxxxxxx X. XxxxxThis Agreement has been duly authorized, General Counsel executed and Corporate Secretary delivered by the Company.
(iii) The Shares have been duly authorized by the Company and, when issued and delivered against payment of the purchase price for such Shares set forth in this Agreement, will be validly issued, fully paid and non-assessable and the Shares are not subject to the preemptive or other similar rights of any stockholder of the Company.
(iv) If any of the Shares consist of shares of Preferred Stock that are convertible into shares of Common Stock, the shares of Common Stock issuable upon conversion thereof have been duly authorized and reserved for issuance upon such conversion and, when issued upon such conversion, will be validly issued, fully paid and non-assessable, and the issuance of such shares of Common Stock upon such conversion will not be subject to any preemptive or similar rights.
(v) The Shares conform in all material respects as to legal matters to the descriptions thereof in the Prospectus.
(vi) The Registration Statement is effective under the 1933 Act and, to the best of their knowledge and information, no stop order suspending the effectiveness of the Registration Statement has been issued under the 1933 Act or proceedings therefor initiated or threatened by the Commission.
(vii) The Registration Statement and Prospectus, and each amendment or supplement thereto (except for the financial statements and other financial data included therein or omitted therefrom and the Statement of Eligibility and Qualification of the Trustee on Form T-1, as to which such counsel need express no opinion), as of their respective effective or issue dates, appear on their face to have been appropriately responsive in all material respects to the requirements of the 1933 Act, the 1939 Act and the Regulations.
(viii) The documents incorporated by reference in the Prospectus (except for the financial statements and other financial data included therein or omitted therefrom, as to which such counsel need express no opinion), as of the dates they were filed with the Commission, appear on their face to have been appropriately responsive in all material respects to the requirements of the 1934 Act and the rules and regulations of the Commission thereunder.
(ix) The execution and delivery of this Agreement, the fulfillment of the terms herein set forth and the consummation of the transactions herein contemplated will not conflict with the charter or by-laws of the Company. Such opinion shall have furnished also state that such counsel has not verified, and is not passing upon and does not assume any responsibility for, the accuracy,
(i) that the Registration Statement or any amendment thereto (except for the financial statements and other financial data included therein or omitted therefrom and the Statement of Eligibility and Qualification of the Trustee on Form T-1, as to you his which such counsel need not comment), at the time the Registration Statement or any such amendment became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or (ii) that the Prospectus or any amendment or supplement thereto (except for the financial statements and other financial data included therein or omitted therefrom, as to which such counsel need not comment), at the time the Prospectus (together with any such amendment or supplement relating to the Shares) was issued or at the Closing Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(2) The written opinion, dated such Time as of Deliverythe Closing Time, in form and substance satisfactory to you, of the General Counsel of the Company to the effect that (i) the Company is duly qualified to transact business and is in good standing in the states in which such qualification is required, (ii) the execution and delivery of this Agreement, the fulfillment of the terms herein in set forth on Annex IIIand the consummation of the transactions herein contemplated will not conflict with or constitute a breach of, or default under, the charter or by-laws of the Company or any agreement, indenture or other instrument known to such counsel of which the Company or any of its subsidiaries is a party or by which it or any of them is bound, or any law, administrative regulation or administrative or court order known to him to be applicable to the Company and (iii) the description of the authorized, issued and outstanding capital stock of the Company under the headings "Description of Capital Stock" and "Capitalization," if applicable, in the Prospectus is accurate as of the dates indicated in such sections, and the issued and outstanding shares of capital stock of the Company have been duly authorized and validly issued, and are fully paid and non-assessable.
(e3) Xxxx Xxxxxxxxxx & Xxxxxxxxx LLP, special Indiana counsel for the Company, shall have furnished to you their The written opinion, dated such Time as of Deliverythe applicable Closing Time, in form and substance satisfactory to youof [____________], counsel for the Underwriters, with respect to the effect matters set forth on Annex IVin Section 4(b)(1)(i) to Section 4(b)(1)(vii), inclusive, and Section 4(b)(1)(ix) of this Agreement.
(fc) Xxxxxx LLPAt the Closing Time, counsel for each of the Selling Stockholdersthere shall not have been, as indicated in Schedule IIA hereto, shall have furnished to you their written opinion with respect to each of the Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex V.
(g) Such local counsel as you shall reasonably require shall have furnished to you their written opinion with respect to each of the foreign Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex VI.
(h) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, UHY, LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, Flackman Xxxxxxx & Xxxxxx, P.A. shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) Neither the Company nor the Subsidiaries shall have sustained since the date of the latest audited financial statements included in the Pricing Prospectus any loss hereof or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, other than as set forth or contemplated in the Pricing Prospectus and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been Registration Statement, any material adverse change in the capital stock or long-term debt of the Company or the Subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations condition of the Company and the Subsidiariesits subsidiaries considered as one enterprise, other than as set forth or contemplated in the Pricing Prospectus, the effect results of which, in any such case described in clause (i) operations or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Pricing Prospectus;
(k) On or after the Applicable Time, there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the NYSE; (ii) a suspension or material limitation in trading in the Company’s securities on the NYSE; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Texas State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus;
(l) The Shares to be sold at such Time of Delivery shall have been duly admitted for trading and quotation on the NYSE;
(m) The Company shall have obtained and delivered to the Underwriters executed copies of a lock-up agreement from each of its directors and executive officers, the Selling Stockholders and each other stockholder identified on Schedule IV hereto, in the form attached as Annex I hereto;
(n) The Company shall have complied with the provisions of Section 5(c) hereof with respect to the furnishing of prospectuses on the New York Business Day next succeeding the date of this Agreement; and
(o) The Company and the Selling Stockholders shall have furnished or caused to be furnished to you at such Time of Delivery certificates of officers business prospects of the Company and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business, and the Representatives shall have received a certificate of the Selling StockholdersPresident or a Vice President of the Company, respectivelydated as of the Closing Time, satisfactory to you as to the accuracy of effect that (i) there has been no such material adverse change and (ii) the other representations and warranties of the Company contained in Section 1 hereof are true and correct with the Selling Stockholders, respectively, herein same force and effect as though expressly made at and as of such Time of Delivery, as the Closing Time.
(d) The Representatives shall have received from PricewaterhouseCoopers LLP or other independent certified public accountants acceptable to the performance Representatives a letter, dated the date hereof, in form and substance satisfactory to the Representatives containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to financial statements and certain financial information contained in the Registration Statement and the Prospectus.
(e) The Representatives shall have received from PricewaterhouseCoopers LLP or other independent certified public accountants acceptable to the Representatives a letter, dated the Closing Time, reconfirming or updating the letter required by Section 4(d) above to the extent that may be reasonably requested by the Company Representative. If any condition specified in this Section 4 shall not have been fulfilled when and the Selling Stockholders of all of their respective obligations hereunder as required to be performed fulfilled, this Agreement may be terminated by the Representative by notice to the Company at any time at or prior to such Time of Deliverythe Closing Time, and the Company such termination shall have furnished or caused be without liability of any party to be furnished certificates any other party except as to the matters set forth provided in subsections (a) of this Section and as to such other matters as you may reasonably request5.
(p) The Company shall have furnished or caused to be furnished to you at such Time of Delivery a certificate of the Executive Vice President, Chief Financial Officer and Treasurer to the effect that:
(i) He is familiar with the internal accounting records of the Company.
(ii) He has reviewed the “Recent Developments” section contained in both the Preliminary Prospectus and the Prospectus. The information presented in such Recent Developments section (A) has been prepared in good faith and based upon assumptions that he believes are reasonable and consistent with the operations of the Company and (B) is a fair estimate in all material respects of the Company’s total revenues and net income for the three months ended June 30, 2011 and has been derived from the Company’s accounting and/or financial records.
Appears in 1 contract
Conditions of Underwriters’ Obligations. The In addition to the execution and delivery of the Terms Agreement, the obligations of the several Underwriters hereunder, as to purchase and pay for the Underwriters Securities that they have respectively agreed to purchase hereunder are subject to the Shares accuracy of the representations and warranties of the Company as of each Representation Date contained herein or in certificates of any officer of the Company or any Subsidiary delivered pursuant to be delivered at each Time of Delivery, shall be subject, in their discretionthe provisions hereof, to the condition that all representations and warranties and other statements of performance by the Company and of the Selling Stockholders herein are, at and as of such Time of Delivery, true and correct, the condition that the Company and the Selling Stockholders shall have performed all of its and their obligations hereunder theretofore and to be performed, and the following additional further conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within At the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(a) hereof; all material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433 under the Act; if the Company has elected to rely upon Rule 462(b) under the ActClosing Time, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m., Washington, D.C. time, on the date of this Agreement; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued under the 1933 Act and no proceeding proceedings for that purpose shall have been initiated instituted or threatened shall be pending or, to the knowledge of the Company, shall be contemplated by the Commission; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction;.
(b) At the applicable Closing Time, the Representatives shall have received:
(1) A signed opinion of Xxxxxxxx, Lipton, Xxxxx Xxxxx L.L.P.& Xxxx, special counsel for the Underwriters, shall have furnished to you such written opinion or opinionsCompany, dated as of Closing Time, together with signed or reproduced copies of such Time opinion for each of Deliverythe other Underwriters, in form and substance reasonably satisfactory to youcounsel for the Underwriters, with respect to such matters as you may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;in the form set forth in Exhibit A hereto.
(c2) Xxxxxx & Xxxxxx L.L.P.A signed opinion of Xxxxxxx X. Xxxxxxxx, counsel Esq., Vice President, Secretary and General Counsel for the Company, shall have furnished to you their written opiniondated as of the Closing Time, dated together with signed or reproduced copies of such Time opinion for each of Deliverythe other Underwriters, in form and substance reasonably satisfactory to youcounsel for the Underwriters, to in the effect form set forth on Annex IIin Exhibit B hereto.
(d3) Xxxxxxxx X. XxxxxA signed opinion of NSK-Warner's Japanese counsel, General Counsel and Corporate Secretary dated as of the CompanyClosing Time, shall have furnished to you his written opinion, dated together with signed or reproduced copies of such Time opinion for each of Deliverythe other Underwriters, in form and substance reasonably satisfactory to youcounsel for the Underwriters, in the form set forth in Exhibit C hereto.
(4) The favorable opinion of Xxxxxxxx & Xxxxxxxx, counsel for the Underwriters, dated as of the Closing Time, together with signed or reproduced copies of such opinion for each of the other Underwriters, to the effect set forth that the opinions delivered pursuant to Section 5(b)(i), 5(b)(2) and 5(b)(3) hereof appear on Annex IIItheir face to be appropriately responsive to the requirements of this Agreement except, specifying the same, to the extent waived by you, and with respect to the incorporation and legal existence of the Company, this Agreement, the Indenture, the Registration Statement, the Prospectus and such other related matters as you may require. In giving such opinion such counsel may rely, as to all matters governed by the laws of jurisdictions other than the law of the State of New York, the federal law of the United States and the General Corporation Law of the State of Delaware, upon the opinions of counsel satisfactory to you. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company and the Subsidiaries and certificates of public officials.
(ec) Xxxx Xxxxxxxxxx & Xxxxxxxxx LLPAt the Closing Time, special Indiana counsel for the Company, shall have furnished to you their written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex IV.
(fi) Xxxxxx LLP, counsel for each of the Selling Stockholders, as indicated in Schedule IIA hereto, shall have furnished to you their written opinion with respect to each of the Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex V.
(g) Such local counsel as you shall reasonably require shall have furnished to you their written opinion with respect to each of the foreign Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex VI.
(h) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to and the date of this Agreement and also at each Time of DeliveryProspectus, UHYas they may then be amended or supplemented, LLP shall have furnished to you a letter or letters, dated comply in all material respects with the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) On the date requirements of the Prospectus at a time prior to 1933 Act and the execution of this Agreement1933 Act Regulations and the 1939 Act and the 1939 Act Regulations, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to and neither the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, Flackman Xxxxxxx & Xxxxxx, P.A. shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) Neither the Company nor the Subsidiaries Prospectus, as they may then be amended or supplemented, shall have sustained since contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the date of the latest audited financial statements included in the Pricing Prospectus any loss or interference with its business from firetherein not misleading, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, other than as set forth or contemplated in the Pricing Prospectus and (ii) there shall not have been, since the respective dates as of which information is given in the Pricing Registration Statement, any material adverse change in the condition (financial or otherwise), results of operations, business affairs or business prospects of the Company and the Subsidiaries, considered as one enterprise, whether or not arising in the ordinary course of business, (iii) no action, suit or proceeding at law or in equity shall be pending or, to the knowledge of the Company, threatened against the Company or any Subsidiary that would be required to be set forth in the Prospectus other than as set forth therein and no proceedings shall be pending or, to the knowledge of the Company, threatened against the Company or any Subsidiary before or by any federal, state or other commission, board or administrative agency wherein an unfavorable decision, ruling or finding could materially adversely affect the condition (financial or otherwise), results of operations, business affairs or business prospects of the Company and the Subsidiaries, considered as one enterprise, other than as set forth in the Prospectus, (iv) the Company shall have complied with all agreements and satisfied all conditions set forth in this Agreement on its part to be performed or satisfied at or prior to the Closing Time and (v) the other representations and warranties of the Company set forth in Section 1 shall be accurate as though expressly made at and as of the Closing Time. At the Closing Time, you shall have received a certificate of the President or a Vice President, and the Treasurer or an Assistant Treasurer, of the Company, dated as of the Closing Time, to such effect.
(d) At the time that this Agreement is executed by the Company, you shall have received from Deloitte & Touche LLP a letter, dated such date, in form and substance satisfactory to you, together with signed or reproduced copies of such letter for each of the other Underwriters, confirming that they are independent public accountants with respect to the Company within the meaning of the 1933 Act and the applicable published 1933 Act Regulations, and stating in effect that:
(i) in their opinion, the audited financial statements and the related financial statement schedules included or incorporated by reference in the Registration Statement and the Prospectus comply as to form in all material respects with the applicable accounting requirements of the 1933 Act and the 1933 Act Regulations;
(ii) on the basis of procedures (but not an examination in accordance with generally accepted auditing standards) consisting of a reading of the unaudited interim consolidated financial statements of the Company included or incorporated by reference in the Registration Statement and the Prospectus (collectively, the "10-Q Financials"), a reading of the latest available unaudited interim consolidated financial statements of the Company, a reading of the minutes of all meetings of the stockholders and directors of the Company and the Subsidiaries and each Committee of the Company's Board of Directors and of each Committee of the Board of Directors of any Subsidiary since January 1, 1998, inquiries of certain officials of the Company and the Subsidiaries responsible for financial and accounting matters, and such other inquiries and procedures as may be specified in such letter, nothing came to their attention that caused them to believe that:
(A) the 10-Q Financials incorporated by reference in the Registration Statement and the Prospectus do not comply as to form in all material respects with the accounting requirements of the 1934 Act and the 1934 Act Regulations applicable to unaudited financial statements included in Form 10-Q or any material modifications should be made to the 10-Q Financials included or incorporated by reference in the Registration Statement and the Prospectus for them to be in conformity with generally accepted accounting principles;
(B) at December 31, 1998 and at a specified date not more than three days prior to the date of this Agreement, there shall not have been was any change in the capital stock of the Company and the Subsidiaries or any decrease in the consolidated net current assets or stockholders' equity of the Company and the Subsidiaries or any increase in long-term debt of the Company or the Subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and the Subsidiaries, other than in each case as set forth or contemplated compared with amounts shown in the Pricing Prospectus, the effect of which, in any such case described in clause (i) latest consolidated balance sheet included or (ii), is incorporated by reference in the judgment of Registration Statement, except in each case for changes, decreases or increases that the Representatives so material and adverse as to make it impracticable Registration Statement discloses have occurred or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Pricing Prospectus;may occur; or
(kC) On or after for the Applicable Timeperiod from October 1, there shall 1998 to December 31, 1998 and for the period from January 1, 1999 to a specified date not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the NYSE; (ii) a suspension or material limitation in trading in the Company’s securities on the NYSE; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Texas State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable more than three days prior to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus;
(l) The Shares to be sold at such Time of Delivery shall have been duly admitted for trading and quotation on the NYSE;
(m) The Company shall have obtained and delivered to the Underwriters executed copies of a lock-up agreement from each of its directors and executive officers, the Selling Stockholders and each other stockholder identified on Schedule IV hereto, in the form attached as Annex I hereto;
(n) The Company shall have complied with the provisions of Section 5(c) hereof with respect to the furnishing of prospectuses on the New York Business Day next succeeding the date of this Agreement, there was any decrease in net sales, equity in affiliate earnings and other income, earnings before interest and finance charges and income taxes or net earnings, in each case as compared with the comparable period in the preceding year;
(iii) based upon the procedures set forth in clause (ii) above and a reading of the Selected Historical Financial Data included in the Registration Statement and a reading of the financial statements from which certain of such data were derived, nothing has come to their attention that gives them reason to believe that the Selected Historical Financial Data included in the Registration Statement do not comply as to form in all material respects with the applicable accounting requirements of the 1933 Act and the 1933 Act Regulations, that the information set forth therein is not fairly stated in relation to the financial statements from which it was derived or that the financial statements not included in the Registration Statement from which certain of such data were derived are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included in the Registration Statement; and
(oiv) The Company they are unable to and do not express any opinion on the Selling Stockholders shall have furnished Pro Forma Financial Data (the "Pro Forma Statement") included or caused incorporated by reference in the Registration Statement or on the pro forma adjustments applied to be furnished to you at the historical amounts included in the Pro Forma Statement; however, for purposes of such Time letter they have:
(A) read the Pro Forma Statement;
(B) made inquiries of Delivery certificates of officers certain officials of the Company who have responsibility for financial and accounting matters about the basis for their determination of the Selling Stockholders, respectively, satisfactory to you pro forma adjustments and whether the Pro Forma Statement complies as to form in all material respects with the applicable accounting requirements of Rule 11-02 of Regulation S-X; and
(C) proved the arithmetic accuracy of the representations and warranties application of the Company pro forma adjustments to the historical amounts in the Pro Forma Statement; and on the Selling Stockholders, respectively, herein at and as basis of such Time of Deliveryprocedures, and such other inquiries and procedures as may be specified in such letter, nothing came to their attention that caused them to believe that the Pro Forma Statement included or incorporated by reference in the Registration Statement does not comply as to form in all material respects with the performance applicable requirements of Rule 11-02 of Regulation S-X or that the pro forma adjustments have not been properly applied to the historical amounts in the compilation of those statements;
(v) in addition to the procedures referred to in clause (ii) above, they have performed other specified procedures, not constituting an audit, with respect to certain amounts, percentages, numerical data and financial information appearing in the Registration Statement, which have previously been specified by the Company you and the Selling Stockholders which shall be specified in such letter, and have compared certain of all of their respective obligations hereunder such items with, and have found such items to be performed at or prior to such Time in agreement with, the accounting and financial records of Delivery, and the Company shall have furnished or caused to be furnished certificates as to the matters set forth in subsections (a) of this Section and as to such other matters as you may reasonably requestCompany.
(pe) The Company At the time that this Agreement is executed by the Company, you shall have furnished received from KPMG Peat Marwick a letter, dated such date, in form and substance satisfactory to you, together with signed or caused to be furnished to you at reproduced copies of such Time of Delivery a certificate letter for each of the Executive Vice Presidentother Underwriters, Chief Financial Officer and Treasurer confirming that they are independent public accountants with respect to the NSK-Warner within the meaning of the 1933 Act and applicable published 1933 Act Regulations, and stating in effect that:
(i) He is familiar in their opinion, the audited financial statements and the related financial statement schedules for NSK-Warner included or incorporated by reference in the Registration Statement and the Prospectus comply as to form in all material respects with the internal applicable accounting records requirements of the Company.1933 Act and the 1933 Act Regulations;
(ii) He has reviewed they have read the “Recent Developments” section contained in both latest available unaudited interim consolidated financial statements of NSK-Warner, the Preliminary Prospectus minutes of all meetings of the stockholders and directors of NSK-Warner and each Committee of the Prospectus. The information presented Board of Directors since April 1, 1998, inquired of certain officials of NSK-Warner responsible for financial and accounting matters, and made such other inquiries and performed such other procedures as may be specified in such Recent Developments section letter, and officials of NSK-Warner stated that:
(A) has been prepared at December 31, 1998 and at a specified date not more than three days prior to the date of this Agreement, there was no change in good faith and based upon assumptions that he believes are reasonable and consistent the common stock of NSK-Warner or decrease in the net current assets or stockholders' equity of NSK-Warner or increase in the notes payable or long-term debt of NSK-Warner, in each case as compared with amounts shown in the operations of latest balance sheet included or incorporated by reference in the Company and Registration Statement; or
(B) is for the period from April 1, 1998 to December 31, 1998 and from January 1, 1999 to a fair estimate specified date not more than three days prior to the date of this Agreement, there was no decrease in all material respects sales, earnings before income taxes or net earnings, in each case as compared with the corresponding period in the preceding year.
(f) At the Closing Time, you shall have received from each of Deloitte & Touche LLP and KPMG Peat Marwick a letter, in form and substance satisfactory to you and dated as of the Closing Time, to the effect that they reaffirm the statements made in the letters furnished pursuant to Sections 5(d) and 5(e), respectively, except that the specified date referred to shall be a date not more than five days prior to the Closing Time.
(g) Subsequent to the execution and delivery of any Terms Agreement and prior to the Closing Time, there shall not have been any downgrading, nor any notice given of any intended or potential downgrading or of a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s total revenues and net income 's securities, including the Underwritten Securities, by any "nationally recognized statistical rating organization," as such term is defined for purposes of Rule 436(g)(2) under the 1933 Act.
(h) At the applicable Closing Time, counsel for the three months ended June 30Underwriters shall have been furnished with all such documents, 2011 certificates and has opinions as they may reasonably request for the purpose of enabling them to pass upon the issuance and sale of the Underwritten Securities as herein contemplated and related proceedings or in order to evidence the accuracy and completeness of any of the representations and warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Underwritten Securities as herein contemplated shall be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters. If any of the conditions specified in this Section shall not have been derived from fulfilled when and as required by this Agreement to be fulfilled, this Agreement may be terminated by the Company’s accounting and/or financial recordsRepresentatives by notice to the Company at any time at or prior to the applicable Closing Time, and such termination shall be without liability of any party to any other party except as provided in Section 4 hereof. Notwithstanding any such termination, the provisions of Sections 6, 7 and 8 shall remain in effect.
Appears in 1 contract
Conditions of Underwriters’ Obligations. The obligations of the several Underwriters hereunder, as hereunder are subject to the Shares accuracy of the representations and warranties of the Company, the Adviser and the Administrator contained in this Agreement or in certificates of any officer of the Company, the Adviser, the Administrator or any of their subsidiaries delivered pursuant to be delivered at each Time of Delivery, shall be subject, in their discretionthe provisions hereof, to the condition that all representations performance by the Company, the Adviser and warranties the Administrator of their respective covenants and other statements of the Company and of the Selling Stockholders herein are, at and as of such Time of Delivery, true and correct, the condition that the Company and the Selling Stockholders shall have performed all of its and their obligations hereunder theretofore to be performedhereunder, and to the following additional further conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(a) hereof; all material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433 under the Act; if the Company has elected to rely upon Rule 462(b) under the ActRegistration Statement, the including any Rule 462(b) Registration Statement shall have Statement, has become effective by 10:00 p.m., Washington, D.C. time, on and as of the date of this Agreement; Closing Date no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been under the 1933 Act or proceedings therefor initiated or threatened by the Commission; no stop order suspending or preventing the use of the Prospectus or , and any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information request on the part of the Commission for additional information shall have been complied with to your the reasonable satisfaction;satisfaction of counsel to the Underwriters. A final prospectus containing the Rule 430C Information shall have been filed with the Commission in accordance with Rule 497.
(b) Xxxxx Xxxxx L.L.P., counsel for the Underwriters, shall have furnished to you such written opinion or opinions, dated such Time of Delivery, in form and substance reasonably satisfactory to you, with respect to such matters as you may reasonably request, and such counsel The Representatives shall have received such papers and information the favorable opinion, dated as they may reasonably request to enable them to pass upon such matters;
(c) Xxxxxx & Xxxxxx L.L.P.of the Closing Date, of Dechert LLP, counsel for the Company, shall have furnished to you their written opinion, dated such Time of Deliverythe Adviser and the Administrator ("Dechert"), in form and substance satisfactory to youthe Representatives, together with signed or reproduced copies of such opinion for each of the Underwriters, in the form set forth in Exhibit E hereto and to such further effect as the Representatives may reasonably request.
(c) The Representatives shall have received from Cxxxxxxx Chance US LLP, counsel for the Underwriters, together with signed or reproduced copies of such opinion, dated as of the Closing Date and addressed to the effect set forth on Annex IIRepresentatives, with respect to the issuance and sale of the Securities, this Agreement, the Registration Statement, any Rule 462(b) Registration Statement, the General Disclosure Package and the Prospectus and any amendments or supplements thereto and such other matters as the Representatives may reasonably require, and the Company, the Adviser and the Administrator shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. In giving such opinion such counsel may rely without investigation, as to all matters governed by the laws of any jurisdictions other than the law of the State of New York, the federal law of the United States and the Delaware Limited Liability Company Act, upon the opinions of counsel satisfactory to the Representatives.
(d) Xxxxxxxx X. Xxxxx, General Counsel and Corporate Secretary of On the Company, shall have furnished to you his written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to Closing Date or the effect set forth on Annex III.
(e) Xxxx Xxxxxxxxxx & Xxxxxxxxx LLP, special Indiana counsel for the Company, shall have furnished to you their written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex IV.
(f) Xxxxxx LLP, counsel for each of the Selling Stockholdersapplicable Option Closing Date, as indicated in Schedule IIA heretothe case may be, there shall not have furnished to you their written opinion with respect to each of the Selling Stockholdersbeen, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex V.
(g) Such local counsel as you shall reasonably require shall have furnished to you their written opinion with respect to each of the foreign Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex VI.
(h) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, UHY, LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, Flackman Xxxxxxx & Xxxxxx, P.A. shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) Neither the Company nor the Subsidiaries shall have sustained since the date of the latest audited financial statements included in the Pricing Prospectus any loss hereof or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, other than as set forth or contemplated in the Pricing Prospectus and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in Registration Statement, the capital stock or long-term debt of the Company or the Subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company General Disclosure Package and the Subsidiaries, other than as set forth or contemplated Prospectus (in the Pricing Prospectus, the effect of which, in any such each case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Pricing Prospectus;
(k) On or after the Applicable Time, there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the NYSE; (ii) a suspension or material limitation in trading in the Company’s securities on the NYSE; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Texas State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence exclusive of any other calamity amendments or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable supplements thereto subsequent to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus;
(l) The Shares to be sold at such Time of Delivery shall have been duly admitted for trading and quotation on the NYSE;
(m) The Company shall have obtained and delivered to the Underwriters executed copies of a lock-up agreement from each of its directors and executive officers, the Selling Stockholders and each other stockholder identified on Schedule IV hereto, in the form attached as Annex I hereto;
(n) The Company shall have complied with the provisions of Section 5(c) hereof with respect to the furnishing of prospectuses on the New York Business Day next succeeding the date of this Agreement; and
(o) The Company and ), any material adverse change in the Selling Stockholders shall have furnished condition, financial or caused to be furnished to you at such Time of Delivery certificates of officers otherwise, or in the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business.
(e) On the Closing Date, the Representatives shall have received a certificate of the Selling StockholdersCompany's Chief Executive Officer and Chief Financial Officer, respectivelydated as of the Closing Date, satisfactory to you as to the accuracy of effect that (i) there has been no such material adverse change, (ii) the representations and warranties of the Company in this Agreement are true and correct with the Selling Stockholders, respectively, herein same force and effect as though expressly made at and as of such Time of Deliverythe Closing Date, as to the performance by (iii) the Company has complied with all agreements and the Selling Stockholders of satisfied all of their respective obligations hereunder conditions on its part to be performed or satisfied at or prior to such Time of Deliverythe Closing Date under or pursuant to this Agreement, and (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or, to their knowledge, are contemplated by the Commission.
(f) On the Closing Date, the Representatives shall have received a certificate of the Adviser's Chief Executive Officer and Chief Financial Officer or equivalent officer(s), dated as of the Closing Date, to the effect that (i) the representations and warranties of the Adviser in this Agreement are true and correct with the same force and effect as though expressly made at and as of the Closing Date and (ii) the Adviser has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date under or pursuant to this Agreement.
(g) On the Closing Date, the Representatives shall have received a certificate of the Administrator's Chief Executive Officer and Chief Financial Officer or equivalent officer(s), dated as of the Closing Date, to the effect that (i) the representations and warranties of the Administrator in this Agreement are true and correct with the same force and effect as though expressly made at and as of the Closing Date and (ii) the Administrator has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to Closing Date under or pursuant to this Agreement.
(h) At the Execution Time, the Representatives shall have received from McGladrey LLP (formerly McGladrey & Pxxxxx, LLP) a letter, dated as of the Execution Time and in form and substance satisfactory to the Representatives, together with signed or reproduced copies of such letter for each of the other Underwriters, containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information of the Company contained in the Registration Statement, the General Disclosure Package, the Prospectus and any amendments or supplements thereto.
(i) On the Closing Date, the Representatives shall have furnished or caused to be furnished certificates received from McGladrey LLP a letter, dated as of the Closing Date and in form and substance satisfactory to the matters set forth Representatives, to the effect that they reaffirm the statements made in subsections the letter furnished pursuant to subsection (ah) of this Section and as 5, except that the specified date referred to such other matters as you may reasonably requestshall be a date not more than three business days prior to the Closing Date.
(pj) The Company On the Closing Date, and each Option Closing Date, if any, the Securities shall have furnished or caused been approved for listing on The Nasdaq Global Select Market, subject only to be furnished official notice of issuance.
(k) Prior to you at such Time the date of Delivery a certificate this Agreement, the Representatives shall have received an agreement substantially in the form of Exhibit D hereto signed by each of the Executive Vice Presidentpersons mentioned in Section 1(a)(24).
(l) Prior to the date of this Agreement, Chief Financial Officer FINRA shall have confirmed in writing that it has no objection with respect to the fairness and Treasurer reasonableness of the underwriting terms and arrangements.
(m) In the event that the Underwriters exercise their option provided in Section 2(b) hereof to purchase all or any portion of the Option Securities on any Option Closing Date that is after the Closing Date, the obligations of the several Underwriters to purchase the applicable Option Securities shall be subject to the conditions specified in the introductory paragraph of this Section 5 and to the further condition that, at the applicable Option Closing Date, the Representatives shall have received:
(1) A certificate, dated such Option Closing Date, to the effect that:
(iset forth in, and signed by the officers specified in Section 5(e) He is familiar with hereof except that the internal accounting records of references in such certificate to the CompanyClosing Date shall be changed to refer to such Option Closing Date.
(ii2) He has reviewed A certificate, dated such Option Closing Date, to the “Recent Developments” section effect set forth in, and signed by the officers specified in Section 5(f) hereof except that the references in such certificate to the Closing Date shall be changed to refer to such Option Closing Date.
(3) A certificate, dated such Option Closing Date, to the effect set forth in, and signed by the officers specified in Section 5(g) hereof except that the references in such certificate to the Closing Date shall be changed to refer to such Option Closing Date.
(4) The favorable opinion of Dechert in form and substance satisfactory to the Representatives and dated such Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 5(b) hereof.
(5) The favorable opinion of Cxxxxxxx Chance US LLP, counsel for the Underwriters, in form and substance satisfactory to the Representatives and dated such Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 5(c) hereof.
(6) A letter from McGladrey LLP, in form and substance satisfactory to the Representatives and dated such Option Closing Date, substantially in the same form and substance as the letter furnished to the Representatives pursuant to Section 5(j) hereof, except that the "specified date" in the letter furnished pursuant to this paragraph shall be a date not more than three business days prior to such Option Closing Date.
(n) On the Closing Date and each Option Closing Date, counsel for the Underwriters shall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the issuance and sale of the Securities as herein contemplated, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, contained in both this Agreement; and all proceedings taken by the Preliminary Prospectus and the Prospectus. The information presented Company in such Recent Developments section (A) has been prepared in good faith and based upon assumptions that he believes are reasonable and consistent connection with the operations issuance and sale of the Company Securities as herein contemplated and in connection with the other transactions contemplated by this Agreement shall be satisfactory in form and substance to the Representatives.
(Bo) If any condition specified in this Section 5 shall not have been fulfilled when and as required to be fulfilled, this Agreement, or, in the case of any condition to the purchase of Option Securities on an Option Closing Date which is a fair estimate in all material respects after the Closing Date, the obligations of the Company’s total revenues several Underwriters to purchase the relevant Option Securities may be terminated by the Representatives by notice to the Company at any time on or prior to Closing Date or such Option Closing Date, as the case may be, and net income for such termination shall be without liability of any party to any other party except as provided in Section 4 hereof and except that, in the three months ended June 30case of any termination of this Agreement, 2011 Sections 1, 6, 7, 8 and has been derived from 16 hereof shall survive such termination and remain in full force and effect and except that, in the Company’s accounting and/or financial recordscase of the termination of the obligations of the several Underwriters to purchase any Option Securities on an Option Closing Date which is after the Closing Date, this Agreement shall otherwise survive such termination and remain in full force and effect.
Appears in 1 contract
Conditions of Underwriters’ Obligations. The MHC, the Company, the Bank and the Representative agree that the issuance and the sale of the Shares and the issuance and sale of the shares of Common Stock in the Subscription Offering and the Community Offering and the issuance of the Foundation Shares and all obligations of the Underwriters hereunder, as hereunder are subject to the Shares to be delivered at each accuracy of the representations and warranties of the MHC, the Company and the Bank herein contained as of the date hereof and the Time of Delivery, shall be subject, in their discretion, to the condition that all representations accuracy of the statements of officers and warranties trustees of the MHC, the officers and other statements directors of the Company and of the Selling Stockholders herein areBank made pursuant to the provisions hereof, at and as of such Time of Deliveryto the performance by the MHC, true and correct, the condition that the Company and the Selling Stockholders shall have performed all Bank of its and their obligations hereunder theretofore to be performedhereunder, and to the following additional further conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Securities Act Regulations and in accordance with Section 5(a3(a) hereof; all material required to be filed by the Company pursuant to Rule 433(d) under the Act hereof (or a post-effective amendment shall have been filed and declared effective in accordance with the Commission within the applicable time period prescribed for such filing by requirements of Rule 433 under the Act; if the Company has elected to rely upon Rule 462(b) under the Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m., Washington, D.C. time, on the date of this Agreement430A); no stop order suspending the effectiveness of the Registration Statement or Statement, including any part thereof post-effective amendment thereto, shall have been issued and no proceeding for that purpose shall have been under the Securities Act or proceedings therefor initiated or or, to the knowledge of the Company, threatened by the Commission; , no stop order suspending the Offerings or preventing the authorization for final use of the Prospectus or Prospectus, including any Issuer Free Writing Prospectus prospectus included in a post-effective amendment to the Registration Statement, shall have been issued or proceedings therefor initiated or or, to the knowledge of the Company, threatened by the Commission; , or the FRB and all requests for additional information on no order suspending the part sale of the Commission Shares in any jurisdiction shall have been complied with to your reasonable satisfaction;issued.
(b) Xxxxx Xxxxx L.L.P.At the Time of Delivery, the Representative shall have received:
(1) The favorable opinion, dated as of the Time of Delivery, of Lxxx Xxxxxx, PC, counsel for the UnderwritersMHC, shall have furnished to you such written opinion or opinions, dated such Time of Delivery, in form the Company and substance reasonably satisfactory to you, with respect to such matters as you may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;
(c) Xxxxxx & Xxxxxx L.L.P., counsel for the Company, shall have furnished to you their written opinion, dated such Time of DeliveryBank, in form and substance satisfactory to youcounsel for the Underwriters, as attached hereto as Exhibit B.
(2) The favorable opinion, dated as of the Time of Delivery, of Silver, Fxxxxxxx, Taff & Txxxxxx LLP, counsel for the Underwriters, as to such matters as the Representative may reasonably require.
(3) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, Lxxx Xxxxxx, PC and Silver, Fxxxxxxx, Txxx & Txxxxxx LLP shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statements and schedules and other financial, pro forma or statistical data included therein, as to which counsel need make no statement), at the time it initially became effective (and at the time any post-effective amendment was declared effective), contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements and schedules and other financial, pro forma or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective, as of the date of the Prospectus or at the Time of Delivery, or (if applicable) that the General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, Lxxx Xxxxxx, PC and Silver, Fxxxxxxx, Txxx & Txxxxxx LLP may rely as to matters of fact on certificates of officers and directors of the MHC, the Company and the Bank and certificates of public officials. Silver, Fxxxxxxx, Taff & Txxxxxx LLP may also rely on the opinion of Lxxx Xxxxxx, PC.
(c) At the Time of Delivery referred to in Section 2 hereof, the Company, the Bank and the MHC shall have completed in all material respects the conditions precedent to the effect set forth on Annex IIReorganization in accordance with the Plan, the applicable FRB Regulations, New York Banking Law and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Reorganization imposed upon the Company, the MHC or the Bank by the FRB, the New York Department or any other regulatory authority other than those which the FRB, the New York Department or any such other regulatory authority permit to be completed after the Offerings.
(d) Xxxxxxxx X. Xxxxx, General Counsel and Corporate Secretary of At the Company, shall have furnished to you his written opinion, dated such Time of Delivery, in form and substance satisfactory to youthere shall not have been, to the effect set forth on Annex III.
(e) Xxxx Xxxxxxxxxx & Xxxxxxxxx LLP, special Indiana counsel for the Company, shall have furnished to you their written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex IV.
(f) Xxxxxx LLP, counsel for each of the Selling Stockholders, as indicated in Schedule IIA hereto, shall have furnished to you their written opinion with respect to each of the Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex V.
(g) Such local counsel as you shall reasonably require shall have furnished to you their written opinion with respect to each of the foreign Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex VI.
(h) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, UHY, LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, Flackman Xxxxxxx & Xxxxxx, P.A. shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) Neither the Company nor the Subsidiaries shall have sustained since the date of the latest audited financial statements included in the Pricing Prospectus any loss hereof or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, other than as set forth or contemplated in the Pricing Prospectus and (ii) since the respective dates as of which information is given in the Pricing Prospectus Registration Statement and the Prospectus, any Material Adverse Effect, whether or not arising in the ordinary course of business, and the Representative shall have received a certificate of the Chief Executive Officer of the MHC, the Company and the Bank and the Chief Financial Officer of the MHC, the Company and the Bank, dated as of Time of Delivery, to the effect that (i) there has been no such Material Adverse Effect, (ii) there shall not have been any change in no material transaction entered into by the capital stock MHC, the Company or long-term debt the Bank from the latest date as of which the financial condition of the Company or the Subsidiaries Bank, as set forth in the Registration Statement, the Prospectus and the General Disclosure Package other than transactions referred to or contemplated therein and transactions in the ordinary course of business substantially consistent with past practice, (iii) none of the Company, the MHC or the Bank shall have received from the FRB, the New York Department or the FDIC any changeorder or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Representative) or which materially and adversely would affect the business, financial condition, results of operations or prospects of the Company, the MHC and the Bank, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Time of Delivery, (v) each of the Company, the MHC and the Bank have complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Time of Delivery, including all agreements and conditions set forth in the Agency Agreement, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or, to the Knowledge of the Company, the MHC or the Bank, threatened by the Commission, (vii) no order suspending the FRB’s approval of the Holding Company Application or the transactions contemplated thereby or the New York Department’s approval of the New York Application or the transactions contemplated thereby has been issued and no proceedings for that purpose have been initiated or, to the knowledge of the Company, the MHC or the Bank, threatened by the FRB or the New York Department and no person has sought to obtain regulatory or judicial review of the action of the FRB or the New York Department in approving the Plan in accordance with the FRB Regulations and New York Banking Law nor has any development involving person sought to obtain regulatory or judicial review of the action of the FRB in approving the Holding Company Application or the New York Department approving the New York Application, and (viii) no order suspending the Offerings or authorization for use of the Prospectus has been issued and no proceedings for that purpose have been initiated by the FRB or the New York Department.
(e) At the Time of Delivery, the Representative shall have received a prospective changecertificate of the Chief Executive Officer of the MHC, the Company and the Bank and the Chief Financial Officer of the MHC, the Company and the Bank, dated as of Time of Delivery, to the effect that (i) they have reviewed the contents of the Registration Statement, the Prospectus and the General Disclosure Package; (ii) based on each of their knowledge, the Registration Statement, the Prospectus and the General Disclosure Package do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in or affecting light of the general affairscircumstances under which such statements were made, managementnot misleading; (iii) based on each of their knowledge, the financial positionstatements and other financial information included in the Registration Statement, stockholders’ equity or the Prospectus and the General Disclosure Package fairly present the financial condition and results of operations of the Company as of and for the dates and periods covered by the Registration Statement and the SubsidiariesProspectus; (iv) they are responsible for establishing and maintaining disclosure controls and procedures; (v) they have designed such disclosure controls and procedures to ensure that material information relating to the Company, the MHC and the Bank is made known to them; (vi) they have evaluated the effectiveness of their disclosure controls and procedures; and (vii) they have disclosed to Bxxxx Txxxx Xxxxxxx Xxxxxx, LLP and the audit committee (A) all significant deficiencies in the design or operation of disclosure controls and procedures which are reasonably likely to adversely affect the Bank’s ability to record, process, summarize, and report financial data, and have identified for the Company’s and the Bank’s independent registered public accounting firm any material weaknesses in disclosure controls and procedures and (B) any fraud, whether or not material, that involves management or other than employees who have a significant role in the Company’s and the Bank’s disclosure controls and procedures.
(f) As of the date hereof, the Representative shall have received from Bxxxx Txxxx Xxxxxxx Xxxxxx, LLP a letter dated such date, in form and substance satisfactory to the Representative, to the effect that: (i) they are independent public accountants with respect to the MHC, the Company and the Bank within the meaning of the Code of Ethics of the AICPA, the Securities Act and the Securities Act Regulations and the FRB Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the Sxxxxxxx-Xxxxx Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Representative and Bxxxx Txxxx Xxxxxxx Xxxxxx, LLP set forth in detail in such letters, nothing has come to their attention which causes them to believe that, except as set forth in such letter, (A) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data” or contemplated under “Recent Developments” in the Pricing ProspectusProspectus and the General Disclosure Package do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited consolidated financial statements included in the Registration Statement, the Prospectus and the General Disclosure Package, (B) at a specified date not more than five (5) business days prior to the date of this Agreement, there has been any increase in the consolidated long-term or short-term debt of the MHC or any decrease in consolidated total assets, investment securities, total loans, the allowance for loan losses, total deposits or total stockholders’ equity of the MHC, in each case as compared with the amounts shown in the June 30, 2018 unaudited consolidated statements of financial condition presented in the Registration Statement or, (C) during the period from June 30, 2018 to a specified date not more than five (5) business days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, or net income of the MHC, except in all instances for increases or decreases which the Registration Statement, the Prospectus and the General Disclosure Package disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinion and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information that are included in the Registration Statement, Prospectus and the General Disclosure Package and that are specified by the Representative, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Company and the Bank identified in such letter.
(g) At the Time of Delivery, the Representative shall have received from Bxxxx Txxxx Xxxxxxx Xxxxxx, LLP a letter dated as of the Time of Delivery, to the effect that they reaffirm the statements made in the letters furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than three (3) business days prior to the Time of Delivery.
(h) As of the date hereof and at the Time of Delivery, the Representative shall have received from the Company’s Chief Financial Officer a certificate dated the respective dates of delivery thereof and addressed to the Agent, in form and substance satisfactory to the Representative, with respect to certain financial information of the Company and the Subsidiaries included in the Registration Statement, the Prospectus and the Disclosure Package, in form and substance satisfactory to the Representative.
(i) At the Time of Delivery, the Securities and the Foundation Shares shall have been approved for listing on the Nasdaq Stock Market.
(j) At the Time of Delivery, the MHC shall have received a letter from the Appraiser, dated as of the Time of Delivery, confirming its appraisal.
(k) At the Time of Delivery, counsel for the Underwriters shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities, including the Shares, as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and the issuance and contribution of the Foundation Shares as herein contemplated shall be satisfactory in form and substance to the Representative and counsel for the Underwriters.
(l) At any time prior to the Time of Delivery, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives Representative, are so material and adverse as to make it impracticable to market the Securities or inadvisable to proceed with enforce contracts, including subscriptions or orders, for the public offering sale of the Securities, and (ii) trading generally on any of the NYSE MKT, the New York Stock Exchange or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Pricing Prospectus;
(k) On or after the Applicable Time, there Nasdaq shall not have occurred been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by any of said Exchanges or by order of the following: (i) Commission or any other governmental authority, and a suspension or material limitation in trading in securities generally on the NYSE; (ii) a suspension or material limitation in trading in the Company’s securities on the NYSE; (iii) a general banking moratorium on commercial banking activities shall not have been declared by either Federal or New York or Texas State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus;
(l) The Shares to be sold at such Time of Delivery shall have been duly admitted for trading and quotation on the NYSE;
(m) The Company shall have obtained and delivered to the Underwriters executed copies of a lock-up agreement from each of its directors and executive officers, the Selling Stockholders and each other stockholder identified on Schedule IV hereto, in the form attached as Annex I hereto;
(n) The Company shall have complied with the provisions of Section 5(c) hereof with respect to the furnishing of prospectuses on the New York Business Day next succeeding the date of this Agreement; and
(o) The Company and the Selling Stockholders shall have furnished or caused to be furnished to you at such Time of Delivery certificates of officers of the Company and of the Selling Stockholders, respectively, satisfactory to you as to the accuracy of the representations and warranties of the Company and the Selling Stockholders, respectively, herein at and as of such Time of Delivery, as to the performance by the Company and the Selling Stockholders of all of their respective obligations hereunder to be performed at or prior to such Time of Delivery, and the Company shall have furnished or caused to be furnished certificates as to the matters set forth in subsections (a) of this Section and as to such other matters as you may reasonably requestauthorities.
(p) The Company shall have furnished or caused to be furnished to you at such Time of Delivery a certificate of the Executive Vice President, Chief Financial Officer and Treasurer to the effect that:
(i) He is familiar with the internal accounting records of the Company.
(ii) He has reviewed the “Recent Developments” section contained in both the Preliminary Prospectus and the Prospectus. The information presented in such Recent Developments section (A) has been prepared in good faith and based upon assumptions that he believes are reasonable and consistent with the operations of the Company and (B) is a fair estimate in all material respects of the Company’s total revenues and net income for the three months ended June 30, 2011 and has been derived from the Company’s accounting and/or financial records.
Appears in 1 contract
Conditions of Underwriters’ Obligations. Termination by the ----------------------------------------------------------- Underwriters. ------------
(a) The obligations of the Underwriters hereunder, as to purchase and pay for the SPUS on any Closing Date shall be subject to the Shares to be delivered at each Time of Delivery, shall be subject, in their discretion, to the condition that all representations and warranties and other statements of the Company and of the Selling Stockholders herein are, at and as of following conditions on such Time of Delivery, true and correct, the condition that the Company and the Selling Stockholders shall have performed all of its and their obligations hereunder theretofore to be performed, and the following additional conditionsClosing Date:
(ai) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(a) hereof; all material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433 under the Act; if the Company has elected to rely upon Rule 462(b) under the Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m., Washington, D.C. time, on the date of this Agreement; no No stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued be in effect on the Closing Date and no proceeding proceedings for that purpose shall be pending before, or to the knowledge of Dominion threatened by, the Commission on such date. The Representative shall have been initiated received, prior to payment for the SPUS, a certificate dated the Closing Date and signed by the President or any Vice President of Dominion to the effect that no such stop order is in effect and that no proceedings for such purpose are pending before or, to the knowledge of Dominion, threatened by the Commission; no stop .
(ii) At the Closing Date an order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part orders of the Commission pursuant to the Holding Company Act permitting the issuance and sale of the SPUS shall have been complied with be in full force and effect and all provisions of such order or orders heretofore entered are deemed acceptable to your reasonable satisfaction;the Representative and Dominion, and all provisions of such order or orders hereafter entered shall be deemed acceptable to the Representative and Dominion unless within 24 hours after receiving a copy of any such order either shall give notice to the other to the effect that such order contains an unacceptable provision.
(biii) Xxxxx Xxxxx L.L.P.At the Closing Date the Representative shall receive, on behalf of the several Underwriters, the opinions of McGuireWoods LLP, counsel for to the Company, _______________ and _______________, counsels to the Underwriters, shall have furnished to you such written opinion or opinions, dated such Time of Delivery, in form and substance reasonably satisfactory to you, with respect to such matters as you may reasonably requestthe Company's General Counsel, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;
(c) Xxxxxx & Xxxxxx L.L.P.______________________, counsel for to the CompanyPurchase Contract Agent substantially in the forms attached hereto as Schedules III, shall have furnished to you their written opinionIV, dated such Time of DeliveryV, VI and VII, respectively, all in form and substance satisfactory to you, to the effect set forth on Annex IIRepresentative.
(div) Xxxxxxxx X. Xxxxx, General Counsel and Corporate Secretary of the Company, The Representative shall have furnished to you his written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex III.
(e) Xxxx Xxxxxxxxxx received from Deloitte & Xxxxxxxxx Touche LLP, special Indiana counsel for the Company, shall have furnished to you their written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex IV.
(f) Xxxxxx LLP, counsel for each of the Selling Stockholders, as indicated in Schedule IIA hereto, shall have furnished to you their written opinion with respect to each of the Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex V.
(g) Such local counsel as you shall reasonably require shall have furnished to you their written opinion with respect to each of the foreign Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex VI.
(h) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Deliveryon the Closing Date, UHYwith respect to Dominion, LLP shall have furnished to you a letter or letters[and from PricewaterhouseCoopers LLP, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) On on the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m.with respect to Consolidated Natural Gas Company for periods ending not later than December 31, New York City time, on the effective date of any post-effective amendment 1999,] a letter addressed to the Registration Statement filed subsequent to Representative, dated the date of this Agreement and also at each Time of Deliverythe Closing Date with respect to Deloitte & Touche LLP, Flackman Xxxxxxx & Xxxxxx, P.A. shall have furnished to you a letter or letters, [and dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) Neither the Company nor the Subsidiaries shall have sustained since the date of this Agreement with respect to PricewaterhouseCoopers LLP,] containing statements and information of the latest audited type ordinarily included in accountants' SAS 72 "comfort letters" to underwriters with respect to the financial statements included and certain financial information contained in or incorporated by reference into the Pricing Prospectus any loss or interference with its business from fireProspectus, explosionincluding the pro-forma financial information.
(v) Subsequent to the execution of this Agreement and prior to the Closing Date, flood or other calamity, whether or not covered by insurance(A) except as reflected in, or from any labor dispute contemplated by, the Registration Statement and the Prospectus (exclusive of amendments or court or governmental actionsupplements after the date hereof), order or decree, other than and except for the sale of Dominion's common stock pursuant to Dominion's registration statement No. 333-______ as set forth or contemplated in the Pricing Prospectus and (iiSection 6(h)(vii) since the respective dates as of which information is given in the Pricing Prospectus above, there shall not have been occurred (1) any change in the capital common stock or long-term debt of Dominion (other than a decrease in the Company or the Subsidiaries or aggregate principal amount of such debt outstanding), (2) any change, or any development involving a prospective change, material adverse change in or affecting the general affairs, management, financial position, stockholders’ equity condition or results earnings of operations of the Company Dominion and the Subsidiaries, its subsidiaries taken as a whole or (3) any material transaction entered into by Dominion or a Significant Subsidiary other than as set forth or contemplated a transaction in the Pricing Prospectusordinary course of business, the effect of which, which in any each such case described in clause (i) or (ii), is in the reasonable judgment of the Representatives Representative is so material and so adverse as to make that it makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery SPUS on the terms and in the manner contemplated in the Pricing Prospectus;
Prospectus and this Agreement, or (kB) On or after the Applicable Time, there shall not have occurred (1) a downgrading in the rating accorded Dominion's senior unsecured notes, or securities that are pari passu to Dominion's senior unsecured notes, by any "nationally recognized statistical rating organization" (as that term is defined by the Commission for purposes of Rule 436(g)(2) under the following: Securities Act) and no such organization shall have given any notice of any intended or potential downgrading or of any review for a possible change with possible negative implications in its ratings of such securities, (i2) any general suspension of trading in securities on the New York Stock Exchange or any limitation on prices for such trading or any restrictions on the distribution of securities established by the New York Stock Exchange or by the Commission or by any federal or state agency or by the decision of any court, (3) a suspension or material limitation in of trading in of any securities generally of Dominion on the NYSE; New York Stock Exchange, (ii4) a suspension or material limitation in trading in the Company’s securities on the NYSE; (iii) a general banking moratorium on commercial banking activities declared either by either Federal federal or New York or Texas State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv5) the any outbreak or escalation of major hostilities involving in which the United States or the is involved, any declaration of war by the United States Congress or any other substantial national or international calamity or crisis resulting in the declaration of a national emergency emergency, or war or (v) the occurrence of if there has occurred any other calamity or crisis or any material adverse change in financialthe financial markets, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) which outbreak, escalation, declaration, calamity, crisis or (v) material adverse change, in the reasonable judgment of the Representatives Representative, makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery SPUS on the terms and in the manner contemplated in the Prospectus;Prospectus and in this Agreement.
(lvi) The Shares to be sold at such Time of Delivery shall have been duly admitted for trading and quotation on On the NYSE;
(m) The Company shall have obtained and delivered to the Underwriters executed copies of a lock-up agreement from each of its directors and executive officersClosing Date, the Selling Stockholders and each other stockholder identified on Schedule IV hereto, in the form attached as Annex I hereto;
(n) The Company shall have complied with the provisions of Section 5(c) hereof with respect to the furnishing of prospectuses on the New York Business Day next succeeding the date of this Agreement; and
(o) The Company and the Selling Stockholders shall have furnished or caused to be furnished to you at such Time of Delivery certificates of officers of the Company and of the Selling Stockholders, respectively, satisfactory to you as to the accuracy of the representations and warranties of the Company Dominion in this Agreement shall be true and the Selling Stockholders, respectively, herein at correct as if made on and as of such Time date, and Dominion shall have performed all obligations and satisfied all conditions required of Deliveryit under this Agreement; and, as on the Closing Date, the Representative shall have received a certificate to the performance such effect signed by the Company and the Selling Stockholders President or any Vice President of all of their respective obligations hereunder to be performed at or prior to such Time of Delivery, and the Company shall have furnished or caused to be furnished certificates as to the matters set forth in subsections (a) of this Section and as to such other matters as you may reasonably requestDominion.
(pvii) The Company All legal proceedings to be taken in connection with the issuance and sale of the SPUS shall have furnished or caused been satisfactory in form and substance to be furnished to you at such Time of Delivery a certificate of the Executive Vice President, Chief Financial Officer _______________ and Treasurer to the effect that:
(i) He is familiar with the internal accounting records of the Company_______________.
(iib) He has reviewed In case any of the “Recent Developments” section contained conditions specified above in both Section 7(a) shall not have been fulfilled, this Agreement may be terminated by the Preliminary Prospectus Representative upon mailing or delivering written notice thereof to Dominion; provided, however, that in case the conditions specified in subsections 7(a)(v) and (vi) shall not have been fulfilled, this Agreement may not be so terminated by the Representative unless Underwriters who have agreed to purchase 50% or more of the total number of the SPUS shall have consented to such termination and the Prospectusaforesaid notice shall so state. The information presented Any such termination shall be without liability of any party to any other party except as otherwise provided in such Recent Developments section Section 9 and Sections 6(b), 6(g) and 7(c) hereof.
(Ac) has been prepared in good faith and based upon assumptions that he believes are reasonable and consistent If this Agreement shall be terminated by the Representative pursuant to Section 7(b) above or because of any failure or refusal on the part of Dominion to comply with the operations terms or to fulfill any of the Company conditions of this Agreement, or if for any reason Dominion shall be unable to perform its obligations under this Agreement, then in any such case, Dominion will reimburse the Underwriters, severally, for all out-of-pocket expenses (in addition to the fees and (Bdisbursements of their outside counsel as provided in Section 6(g)) is a fair estimate reasonably incurred by such Underwriters in all material respects of connection with this Agreement or the Company’s total revenues offering contemplated hereunder and, upon such reimbursement, Dominion shall be absolved from any further liability hereunder, except as provided in Section 6(b) and net income for the three months ended June 30, 2011 and has been derived from the Company’s accounting and/or financial recordsSection 9.
Appears in 1 contract
Sources: Underwriting Agreement (Dominion Resources Capital Trust Iv)
Conditions of Underwriters’ Obligations. The several obligations of the Underwriters hereunderUnderwriter to purchase and pay for the Shares, as to the Shares to be delivered at each Time of Deliveryprovided herein, shall be subject, in their discretion, subject to the condition that all accuracy of the representations and warranties and other statements of the Company and of the Selling Stockholders herein are, at and as of such Time of Delivery, true and correct, the condition that the Company and the Selling Stockholders Shareholders herein contained, as of the date hereof and as of the Closing Date (for purposes of this Section 8, "Closing Date" shall have performed refer to the Closing Date for the Shares), to the performance by the Company of all of its and their obligations hereunder theretofore to be performedhereunder, and to each of the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in a timely fashion in accordance with Section 5(a5(a)(i) hereof; all material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433 under the Act; if the Company has elected to rely upon Rule 462(b) under the Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m., Washington, D.C. time, on the date of this Agreement; no stop order suspending the effectiveness of the Registration Statement or any part thereof post-effective amendment thereto, and no stop order suspending or preventing the use of any Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus, shall have been issued by the Commission and no proceeding for that purpose proceedings therefor shall have been initiated or threatened by the Commission; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction;; and all necessary regulatory or stock exchange approvals shall have been received.
(b) Xxxxx Xxxxx L.L.P., counsel for At the Underwriters, shall have furnished to Closing Date you such written opinion or opinions, dated such Time of Delivery, in form and substance reasonably satisfactory to you, with respect to such matters as you may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;
(c) Xxxxxx the written opinion of each of LeBoeuf, Lamb, Greene & Xxxxxx L.L.P.MacRae LLP, counsel for the Company, shall have furnished to you their written opinionKilpatrick Stockton LLP, dated such Time of Delivery, in form and substance satisfactory to you, Xxxxxia xxxxxxl to the effect set forth on Annex II.
(d) Xxxxxxxx X. XxxxxCompany, General Counsel and Corporate Todd C. Jxxxxxx, Xxxx Xxxxxxent and Secretary of the Company, shall have furnished dated thx Xxxxxxx Xxxx and addressed to you his written opinion, dated such Time of Deliverythe Underwriter, in form and substance satisfactory to you, to the effect set forth on Annex III.
(e) Xxxx Xxxxxxxxxx & Xxxxxxxxx LLP, special Indiana counsel for the Company, shall have furnished to you their written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex IV.
(f) Xxxxxx LLP, counsel for each of the Selling Stockholders, as indicated in Schedule IIA hereto, shall have furnished to you their written opinion with respect to each of the Selling Stockholders, dated the First Time of Delivery, case in form and substance satisfactory to you, to the effect set forth in Annex V.I hereto.
(gc) Such local counsel as At the Closing Date, you shall reasonably require shall have furnished to you their received the favorable written opinion with respect to of Cleary Gottlieb Steen & Hamilton LLP, counsel for each of the foreign Selling StockholdersXxxxxxxxxxxx, xxxxx xhe Xxxxxxx Date, addressed to the Underwriter in the form attached hereto as Annex II.
(d) At the Closing Date, you shall have received the written opinion of Underwriter's Counsel, dated the First Time of DeliveryClosing Date and addressed to the Underwriter, in form and substance satisfactory to you, with respect to the effect set forth in Annex VI.
(h) On the date issuance and sale of the Prospectus at a time prior to the execution of this AgreementShares, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to Statement, the date of this Agreement Pricing Disclosure Package, the Prospectus and also at each Time of Deliverysuch other matters as you may require, UHY, LLP and the Company shall have furnished to Underwriter's Counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(e) At the Closing Date you shall have received a letter or letterscertificate of the Chief Executive Officer and Chief Financial Officer of the Company, dated the respective dates of delivery thereofClosing Date, in form and substance satisfactory to you;
, as to the accuracy of the representations and warranties of the Company set forth in Section 1 hereof as of the date hereof and as of the Closing Date, as to the performance by the Company of all of its obligations hereunder to be performed at or prior to the Closing Date, as to the matters set forth in subsections (a), (h) and (i) On the date of the Prospectus at a time prior to the execution of this AgreementSection 8, at 9:30 a.m.and as to such other matters as you may reasonably request.
(f) At the Closing Date, New York City timeyou shall have received a comfort letter, on from KPMG LLP, independent public accountants for the effective date Company, dated, respectively, as of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time as of Deliverythe Closing Date, Flackman Xxxxxxx & Xxxxxx, P.A. shall have furnished addressed to you a letter or letters, dated the respective dates of delivery thereof, Underwriter and in form and substance satisfactory to you;the Underwriter and Underwriter's Counsel.
(g) At the Closing Date, you shall have received a comfort letter, from Ernst & Young LLP, former independent public accountants for the Company, dated, respectively, as of the date of this Agreement and as of the Closing Date, addressed to the Underwriter and in form and substance satisfactory to the Underwriter and Underwriter's Counsel.
(i) Neither the Company nor the Subsidiaries any Subsidiary shall have sustained sustained, since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus Prospectus, any material loss or interference with its business or properties from fire, explosion, flood flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or court any legal or governmental action, order or decreeproceeding, other than as set forth or contemplated in the Pricing Prospectus (exclusive of any supplement thereto); and (ii) since subsequent to the respective dates as of which information is given in the Registration Statement (exclusive of any amendment thereto subsequent to the date hereof) and the Pricing Prospectus (exclusive of any supplement thereto), there shall not have been any change in the capital stock or long-term or short-term debt of the Company or the Subsidiaries any Subsidiary or any change, change or any development involving a prospective change, whether or not arising from transactions in or affecting the ordinary course of business, in the business, general affairs, management, condition (financial positionor otherwise), stockholders’ equity or results of operations operations, shareholders' equity, properties or prospects of the Company and the Subsidiaries, other than individually or taken as set forth or contemplated in the Pricing Prospectusa whole, the effect of which, in any such case described in clause (i) or (ii)above, is is, in the judgment of the Representatives Underwriter, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery Offering on the terms and in the manner contemplated in the Pricing Prospectus;Disclosure Package (exclusive of any such supplement).
(ki) On or after the Applicable Time, there (i) no downgrading shall not have occurred in the rating accorded the Company's debt securities or preferred stock or the Company's financial strength or claims paying ability by any "nationally recognized statistical rating organization", as such term is defined by the Commission for purposes of Rule 436(g)(2) under the Securities Act, and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the following: Company's debt securities or preferred stock or the Company's financial strength or claims paying ability.
(ij) a suspension or material limitation in trading in securities generally At the Closing Date, the Shares shall have been approved for listing upon notice of issuance on the NYSE; .
(iik) At the Closing Date, you shall have received a suspension or material limitation in trading in certificate of an authorized representative of each Selling Shareholder, dated the Company’s securities on the NYSE; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Texas State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financialClosing Date, political or economic conditions in the United States or elsewhere, if to the effect that the representations and warranties of any such event specified Selling Shareholder set forth in clause (iv) Section 2 hereof are accurate and that such Selling Shareholder has complied with all agreements and satisfied all conditions on its part to be performed or (v) in satisfied hereunder at or prior to the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus;Closing Date.
(l) The Shares On or prior to be sold at such Time of Delivery the Closing Date, you shall have been duly admitted for trading received a properly completed and quotation on the NYSE;executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof) from each Selling Shareholder.
(m) The Company shall have obtained furnished the Underwriter and delivered to Underwriter's Counsel with such other certificates, opinions or other documents as they may have reasonably requested. If any of the Underwriters executed copies of a lock-up agreement from each of its directors conditions specified in this Section 8 shall not have been fulfilled when and executive officers, the Selling Stockholders and each other stockholder identified on Schedule IV hereto, in the form attached as Annex I hereto;
(n) The Company shall have complied with the provisions of Section 5(c) hereof with respect to the furnishing of prospectuses on the New York Business Day next succeeding the date of required by this Agreement; and
(o) The Company and , or if any of the Selling Stockholders shall have furnished certificates, opinions, written statements or caused to be letters furnished to you at such Time of Delivery certificates of officers or to Underwriter's Counsel pursuant to this Section 8 shall not be satisfactory in form and substance to the Underwriter and to Underwriter's Counsel, all obligations of the Company and Underwriter hereunder may be cancelled by the Underwriter at, or at any time prior to, the Closing Date. Notice of the Selling Stockholders, respectively, satisfactory to you as such cancellation shall be given to the accuracy of the representations and warranties of the Company and the Selling Stockholders, respectively, herein at and as of in writing or by telephone. Any such Time of Delivery, as to the performance by the Company and the Selling Stockholders of all of their respective obligations hereunder to telephone notice shall be performed at or prior to such Time of Delivery, and the Company shall have furnished or caused to be furnished certificates as to the matters set forth confirmed promptly thereafter in subsections (a) of this Section and as to such other matters as you may reasonably requestwriting.
(p) The Company shall have furnished or caused to be furnished to you at such Time of Delivery a certificate of the Executive Vice President, Chief Financial Officer and Treasurer to the effect that:
(i) He is familiar with the internal accounting records of the Company.
(ii) He has reviewed the “Recent Developments” section contained in both the Preliminary Prospectus and the Prospectus. The information presented in such Recent Developments section (A) has been prepared in good faith and based upon assumptions that he believes are reasonable and consistent with the operations of the Company and (B) is a fair estimate in all material respects of the Company’s total revenues and net income for the three months ended June 30, 2011 and has been derived from the Company’s accounting and/or financial records.
Appears in 1 contract
Sources: Underwriting Agreement (Fidelity National Information Services, Inc.)
Conditions of Underwriters’ Obligations. The obligations of each of the Underwriters hereunder, to purchase the Securities on the Closing Date as provided herein is subject to the Shares to be delivered at each Time performance by the Company of Delivery, shall be subject, in their discretion, its covenants and other obligations hereunder and to the condition that all representations and warranties and other statements of the Company and of the Selling Stockholders herein are, at and as of such Time of Delivery, true and correct, the condition that the Company and the Selling Stockholders shall have performed all of its and their obligations hereunder theretofore to be performed, and the following additional conditions:
(a) The representations and warranties of the Company contained in this Agreement shall be true and correct on the date hereof, at the Applicable Time and on the Closing Date with the same force and effect as if made on and as of the date hereof. The Company shall have performed or complied with all of its obligations and agreements herein contained and required to be performed or complied with at or prior to the Closing Date. The statements of the Company and its officers made in any certificates delivered pursuant to this Agreement shall be true and correct on and as of the Closing Date.
(b) No order suspending the effectiveness of the Registration Statement shall be in effect, and no proceeding for such purpose or pursuant to Section 8A under the Act shall be pending before or threatened by the Commission; the Prospectus and each Issuer Represented Free Writing Prospectus shall have been timely filed with the Commission pursuant to Rule 424(b) under the Act within (in the applicable time period prescribed for such filing case of an Issuer Represented Free Writing Prospectus, to the extent required by the rules and regulations Rule 433 under the Act Act) and in accordance with Section 5(a) hereof; all material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433 under the Act; if the Company has elected to rely upon Rule 462(b) under the Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m., Washington, D.C. time, on the date of this Agreement; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests by the Commission for additional information on the part of the Commission shall have been complied with to your the reasonable satisfaction;
(b) Xxxxx Xxxxx L.L.P., counsel for satisfaction of the Underwriters, shall have furnished to you such written opinion or opinions, dated such Time of Delivery, in form and substance reasonably satisfactory to you, with respect to such matters as you may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;Representatives.
(c) Xxxxxx & Xxxxxx L.L.P.Subsequent to the earlier of (A) the Applicable Time and (B) the execution and delivery of this Agreement, counsel for the Company, (i) no downgrading shall have furnished to you their written opinionoccurred in the rating accorded the Securities or any other debt securities or preferred stock of or guaranteed by the Company by either Xxxxx’x Investor Service, dated such Time Inc. (“Moody’s”) or Standard & Poor’s Ratings Services (“S&P”) and (ii) neither Moody’s nor S&P shall have publicly announced that it has under surveillance or review, or has changed its outlook with respect to, its rating of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex IISecurities or of any other debt securities or preferred stock of or guaranteed by the Company (other than an announcement with positive implications of a possible upgrading).
(d) Xxxxxxxx X. Xxxxx, General Counsel and Corporate Secretary No event or condition of the Company, a type described in Section 6(u) hereof shall have furnished to you his written opinionoccurred or shall exist, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex III.
(e) Xxxx Xxxxxxxxxx & Xxxxxxxxx LLP, special Indiana counsel for the Company, shall have furnished to you their written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex IV.
(f) Xxxxxx LLP, counsel for each of the Selling Stockholders, as indicated in Schedule IIA hereto, shall have furnished to you their written opinion with respect to each of the Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex V.
(g) Such local counsel as you shall reasonably require shall have furnished to you their written opinion with respect to each of the foreign Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex VI.
(h) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, UHY, LLP shall have furnished to you a letter which event or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, Flackman Xxxxxxx & Xxxxxx, P.A. shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) Neither the Company nor the Subsidiaries shall have sustained since the date of the latest audited financial statements included condition is not described in the Pricing Prospectus Disclosure Package (excluding any loss amendment or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, other than as set forth or contemplated in the Pricing Prospectus and (iisupplement thereto) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or the Subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and the Subsidiaries, other than as set forth Prospectus (excluding any amendment or contemplated in the Pricing Prospectus, supplement thereto) and the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Pricing Prospectus;
(k) On or after the Applicable Time, there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the NYSE; (ii) a suspension or material limitation in trading in the Company’s securities on the NYSE; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Texas State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) which in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering offering, sale or the delivery of the Shares being delivered at such Time of Delivery Securities on the terms and in the manner contemplated in by this Agreement, the Pricing Disclosure Package and the Prospectus;.
(le) The Shares to be sold at such Time of Delivery Representatives shall have been duly admitted for trading received on and quotation on as of the NYSE;
(m) The Company shall have obtained Closing Date a certificate of the President or any Vice President, and delivered to the Underwriters executed copies of a lock-up agreement from each of its directors and executive officers, the Selling Stockholders and each other stockholder identified on Schedule IV hereto, in the form attached as Annex I hereto;
(n) The Company shall have complied with the provisions of Section 5(c) hereof with respect to the furnishing of prospectuses on the New York Business Day next succeeding the date of this Agreement; and
(o) The Company and the Selling Stockholders shall have furnished principal financial or caused to be furnished to you at such Time of Delivery certificates of officers accounting officer of the Company (i) confirming that such officer has carefully reviewed the Registration Statement, the Pricing Disclosure Package and of the Selling StockholdersProspectus and, respectively, satisfactory to you as to the accuracy best knowledge of such officer, the representations set forth in Section 6(b) hereof are true and correct, (ii) confirming that the other representations and warranties of the Company in this Agreement are true and the Selling Stockholders, respectively, herein at correct and as of such Time of Delivery, as to the performance by that the Company has complied with all agreements and the Selling Stockholders of satisfied all of their respective obligations hereunder conditions on its part to be performed or satisfied hereunder at or prior to such Time of Delivery, the Closing Date and the Company shall have furnished or caused to be furnished certificates as (iii) to the matters effect set forth in subsections paragraphs (ab), (c) and (d) of this Section and as to such other matters as you may reasonably request9.
(pf) The Company On the Closing Date, you shall have furnished or caused to be furnished received:
(1) an opinion (in a form reasonably satisfactory to you at such Time and your counsel), dated the Closing Date, of Delivery a certificate of Xxxxxx & Xxxxxxx, counsel for the Executive Vice PresidentCompany, Chief Financial Officer and Treasurer to the effect that:
(a) The Company is a limited partnership under the Delaware Revised Uniform Limited Partnership Act with limited partnership power and authority to own its properties and to conduct its business as described in the Registration Statement, the Preliminary Prospectus Supplement and the Prospectus. With your consent, based solely on certificates from public officials, we confirm that the Company is validly existing and in good standing under the laws of the State of Delaware and is qualified to do business in Maryland.
b) The execution, delivery and performance of this Agreement have been duly authorized by all necessary limited partnership action of the Company, and this Agreement has been duly executed and delivered by the Company.
c) Each of the Base Indenture and the Supplemental Indenture have been duly authorized by all necessary limited partnership action of the Company, has been duly executed and delivered by the Company, and is the legally valid and binding agreement of the Company, enforceable against the Company in accordance with its terms.
d) The Securities have been duly authorized by all necessary limited partnership action of the Company and, when executed, issued and authenticated in accordance with the terms of the Indenture and delivered and paid for in accordance with the terms of this Agreement, will be legally valid and binding obligations of the Company, enforceable against the Company in accordance with their terms.
e) The execution and delivery of this Agreement and the Indenture and the issuance and sale of the Notes by the Company to you and the other Underwriters pursuant to this Agreement and the Indenture do not on the date hereof:
i) He is familiar violate the Certificate of Limited Partnership and the Third Amended and Restated Agreement of Partnership of the Company, as amended to date; or
ii) violate any federal or New York statute, rule or regulation applicable to the Company or the Delaware Revised Uniform Limited Partnership Act; or
iii) require any consents, approvals, or authorizations to be obtained by the Company from, or any registrations, declarations or filings to be made by the Company with, any governmental authority under any federal or New York statute, rule or regulation applicable to the Company or the Delaware Revised Uniform Limited Partnership Act that have not been obtained or made; or
iv) result in the breach of or a default under any agreements filed as exhibits to the Company’s annual report on Form 10-K for the year ended December 31, 2014 and incorporated by reference into the Prospectus.
f) The Registration Statement has become effective under the Act. With your consent, based solely upon the list of stop orders contained on the Commission’s website at xxxx://xxx.xxx.xxx/litigation/stoporders.shtml at 8:30 a.m. New York City time on May 15, 2015, we confirm that no stop order suspending the effectiveness of the Registration Statement has been issued under the Act and no proceedings therefor have been initiated by the Commission. The Preliminary Prospectus has been filed in accordance with Rule 424(b) under the Act, the Prospectus has been filed in accordance with Rule 424(b) and 430B under the Act, and the Pricing Term Sheet has been filed in accordance with Rule 433(d) under the Act.
g) The Registration Statement at May 6, 2015, including the information deemed to be a part thereof pursuant to Rule 430B under the Act, and the Prospectus, as of its date, each appeared on their face to be appropriately responsive in all material respects to the applicable form requirements for registration statements on Form S-3 under the Act and the rules and regulations of the Commission thereunder; it being understood, however, that we express no view with respect to the Form T-1, Regulation S-T or the financial statements, schedules, or other financial data, included in, incorporated by reference in, or omitted from, the Registration Statement or the Prospectus. For purposes of this paragraph, we have assumed that the statements made in the Registration Statement and the Prospectus are correct and complete.
h) The statements in the Pricing Disclosure Package and the Prospectus under the captions “Description of the Series E Senior Notes” and “Description of Debt Securities,” insofar as they purport to describe or summarize certain provisions of the Securities and the Indenture are accurate summaries or descriptions in all material respects.
i) Each of the reports and proxy statement filed by the Company with the internal accounting records Commission and incorporated by reference in the Registration Statement, the Preliminary Prospectus or the Prospectus (the “Incorporated Documents”), as of its respective filing date, appeared on its face to be appropriately responsive in all material respects to the applicable requirements for reports on Forms 10-K and 8-K, and proxy statement under Regulation 14A, as the case may be, under the Exchange Act and the rules and regulations of the Commission thereunder; it being understood, however, that we express no opinion with respect to Regulation S-T or the financial statements, schedules, or other financial data, included in, incorporated by reference in, or omitted from such reports and proxy statement. For purposes of this paragraph, we have assumed that the statements made in the Incorporated Documents are correct and complete.
j) The Company is not, and immediately after giving effect to the sale of the Securities in accordance with this Agreement and the application of the proceeds as described in the Prospectus under the caption “Use of Proceeds,” will not be required to be, registered as an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
k) The Indenture has been qualified under the Trust Indenture Act of 1939, as amended.
l) Based on such facts and subject to the qualifications, assumptions and limitations set forth herein and in the Prospectus, we hereby confirm that the statements in the Prospectus under the caption “United States Federal Income Tax Considerations,” insofar as such statements purport to constitute summaries of United States federal income tax law and regulations or legal conclusions with respect thereto, constitute accurate summaries of the matters described therein in all material respects.
(2) an opinion (satisfactory to you and your counsel) dated the Closing Date, of Xxxxx Lovells US LLP, special tax counsel to Host Inc. and the Company, to the effect that:
a) Host Inc. was organized and has operated in conformity with the requirements for qualification and taxation as a real estate investment trust (“REIT”) under the Code, effective for each of its taxable years ended December 31, 1999 through and including December 31, 2014, and Host Inc.’s current organization and current and intended method of operation (as described in the Prospectus, the Prospectus Supplement and a letter from Host Inc. to Xxxxx Lovells US LLP dated the date of this opinion) will enable it to continue to meet the requirements for qualification and taxation as a REIT under the Code for taxable year 2015 and thereafter.
(g) In addition, Xxxxxx & Xxxxxxx LLP shall also confirm, in a separate letter, that subject to customary qualifications as to such counsel’s participation, review and reliance, no facts came to such counsel’s attention that caused such counsel to believe that the Pricing Disclosure Package, as of the Applicable Time, and the Prospectus, as of its date, and as of the Closing Date, contained an untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, it being understood that such counsel will express no belief with respect to the financial statements, schedules or other financial data included or incorporated by reference in, or omitted from, the Pricing Disclosure Package or the Prospectus. In rendering any opinion pursuant to this Section 9, any counsel may rely, as to matters of fact, to the extent such counsel deems proper, on oral or written statements and representations of officers and other representatives of the Company and others, on certificates of and assurances from public officials and on certificates or other written statements of officers of departments of various jurisdictions having custody of documents respecting the corporate existence or good standing of the Company.
(iih) He has reviewed You shall have received an opinion or opinions, as to certain of the matters set forth above, dated the Closing Date, of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP (“Recent Developments” section Xxxxxxx Xxxx”), your counsel, in form and substance reasonably satisfactory to you.
(i) You shall have received letters on and as of the date hereof as well as on and as of the Closing Date (in the latter case constituting an affirmation of the statements set forth in the former), in form and substance satisfactory to you from KPMG LLP, independent public accountants, with respect to the financial statements and certain financial information contained in both the Preliminary Prospectus and the Prospectus. .
(j) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the Closing Date, prevent the issuance or sale of the Securities; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Securities.
(k) The information presented in such Recent Developments section (A) has been prepared in Representatives shall have received on and as of the Closing Date satisfactory evidence of the good faith and based upon assumptions that he believes are reasonable and consistent with the operations standing of the Company and certain of its subsidiaries, as agreed upon among the Company and the Representatives, in their respective jurisdictions of organization and their good standing in such other jurisdictions as the Representative may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(Bl) is a fair estimate On or prior to the Closing Date, the Company shall have furnished to the Representative such further certificates and documents as the Representative may reasonably request. All opinions, letters, certificates and evidence mentioned above or elsewhere in all material respects of this Agreement shall be deemed to be in compliance with the Company’s total revenues provisions hereof only if they are in form and net income substance reasonably satisfactory to counsel for the three months ended June 30, 2011 and has been derived from the Company’s accounting and/or financial recordsUnderwriters.
Appears in 1 contract
Sources: Underwriting Agreement (Host Hotels & Resorts L.P.)
Conditions of Underwriters’ Obligations. The several obligations of the Underwriters hereunder, as to purchase and pay for the Offered Securities hereunder are subject to the Shares to be delivered at each Time of Delivery, shall be subject, in their discretion, to the condition that all representations and warranties and other statements of the Company and of the Selling Stockholders herein are, at and as of such Time of Delivery, true and correct, the condition that the Company and the Selling Stockholders shall have performed all of its and their obligations hereunder theretofore to be performed, and the following additional conditions:
(a) The Prospectus That, at the Closing Date, the Company shall have been filed furnished to the Managers (i) an opinion of counsel of P. Bxxxx Xxxxxxxxx xx another attorney authorized as legal representative of the Company, addressed to the Managers and dated the Closing Date, in substantially the form previously approved by the Managers and (ii) an opinion of Bryax Xxxx XXX or other special counsel addressed to the Managers and dated the Closing Date, in substantially the form previously approved by the Managers.
(b) That, at the Closing Date, the Company shall have furnished (i) an opinion of Richxxx X. Xxxxxxxx xx another attorney competent to opine on regulatory matters and authorized to act as legal representative of the 13 13 Company, addressed to the Managers and dated the Closing Date, in substantially the form previously approved by the Managers.
(c) That, at the Closing Date, the Managers shall have received an opinion of counsel for the Underwriters, addressed to the Managers and dated the Closing Date, in a form reasonably acceptable to them.
(d) That the representations and warranties of the Company in this Underwriting Agreement are true and correct in all material respects on the Closing Date with the Commission pursuant to Rule 424(b) under same effect as if made on the Act within Closing Date and the applicable time period prescribed for such filing by the rules and regulations under the Act and Company shall have complied in accordance with Section 5(a) hereof; all material required respects with all the agreements and satisfied in all material respects all the conditions on its part to be filed by performed or satisfied at or prior to the Company pursuant to Rule 433(dClosing Date.
(e) under the Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433 under the Act; if the Company has elected to rely upon Rule 462(b) under the Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m., Washington, D.C. time, on the date of this Agreement; That no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have has been issued and no proceeding proceedings for that purpose shall have been initiated or threatened by the Commission; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction;
(b) Xxxxx Xxxxx L.L.P., counsel for the Underwriters, shall have furnished to you such written opinion or opinions, dated such Time of Delivery, in form and substance reasonably satisfactory to you, with respect to such matters as you may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;
(c) Xxxxxx & Xxxxxx L.L.P., counsel for the Company, shall have furnished to you their written opinion, dated such Time of Delivery, in form and substance satisfactory to youinstituted or, to the effect set forth on Annex II.
(d) Xxxxxxxx X. XxxxxCompany's knowledge, General Counsel and Corporate Secretary of the Company, shall have furnished to you his written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex III.
(e) Xxxx Xxxxxxxxxx & Xxxxxxxxx LLP, special Indiana counsel for the Company, shall have furnished to you their written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex IVthreatened.
(f) Xxxxxx LLPThat subsequent to the execution and delivery of this Underwriting Agreement and prior to the Closing Date, counsel for each there shall not have occurred any downgrading, nor shall any notice have been given to the Company of (A) any intended or potential downgrading or (B) any review or possible change that does not indicate the direction of a possible change, in the rating accorded any of the Selling StockholdersCompany's securities by either of Standard & Poor's Ratings Group or Moodx'x Xxxestors Service, as indicated in Schedule IIA hereto, shall have furnished to you their written opinion with respect to each of the Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex V.Inc.
(g) Such local counsel as you shall reasonably require shall have furnished to you their written opinion with respect to each Since the date of the foreign Selling Stockholdersmost recent financial statements included in the Prospectus, dated there has been no Material Adverse Change, whether or not arising from transactions in the First Time ordinary course of Deliverybusiness, in form and substance satisfactory to you, to the effect except as set forth in Annex VIor contemplated in the Prospectus.
(h) On the date of the Prospectus at a time prior to the execution of this AgreementThat, at 9:30 a.m.the Closing Date, New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, UHY, LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, Flackman Xxxxxxx & Xxxxxx, P.A. shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) Neither the Company nor the Subsidiaries shall have sustained since the date of the latest audited financial statements included in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, other than as set forth or contemplated in the Pricing Prospectus and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been (i) any change or decrease specified in the capital stock letter or long-term debt letters referred to in paragraph (j) of the Company this Section 5 or the Subsidiaries or (ii) any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity business or results of operations properties of the Company and the Subsidiaries, other than as set forth or contemplated in the Pricing Prospectus, Subsidiaries the effect of which, in any such case described referred to in clause (i) or (ii)) above, is is, in the judgment of the Representatives Managers, so material and adverse as to make it impracticable impractical or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on Securities as contemplated by the terms Registration Statement and in the manner contemplated in the Pricing Prospectus;. 14 14
(k) On or after the Applicable Time, there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on That, at the NYSE; (ii) a suspension or material limitation in trading in the Company’s securities on the NYSE; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Texas State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financialClosing Date, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus;
(l) The Shares to be sold at such Time of Delivery shall have been duly admitted for trading and quotation on the NYSE;
(m) The Company shall have obtained and delivered to the Underwriters executed copies of a lock-up agreement from each of its directors and executive officers, the Selling Stockholders and each other stockholder identified on Schedule IV hereto, in the form attached as Annex I hereto;
(n) The Company shall have complied with the provisions of Section 5(c) hereof with respect to the furnishing of prospectuses on the New York Business Day next succeeding the date of this Agreement; and
(o) The Company and the Selling Stockholders shall have furnished or caused to be furnished to you at such Time of Delivery certificates of officers of the Company and of the Selling Stockholders, respectively, satisfactory to you as to the accuracy of the representations and warranties of the Company and the Selling Stockholders, respectively, herein at and as of such Time of Delivery, as to the performance by the Company and the Selling Stockholders of all of their respective obligations hereunder to be performed at or prior to such Time of Delivery, and the Company shall have furnished or caused to be furnished certificates as to the matters set forth Managers a certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the Company, each in subsections his official capacity as an officer of the Company and not as an individual, dated the Closing Date, to the effect of subparagraphs (ad) through (h)(i) of this Section and as to such other matters as you may reasonably request5.
(pj) The Company That, at the date on which the Terms Agreement is executed and delivered and at the Closing Date, each of (i) Arthxx Xxxexxxx XXX, the Company's independent public accountants and (ii) Price Waterhouse Coopers LLP, MCI's independent public accountants shall have furnished to the Managers a letter or caused to be furnished to you at such Time of Delivery a certificate letters, dated respectively as of the Executive Vice Presidentdate of the applicable Terms Agreement (unless otherwise specified therein) and the Closing Date, Chief Financial Officer in substantially the form previously approved the Managers and Treasurer to the effect that:
(i) He is familiar with the internal accounting records of the Company.
(iik) He has reviewed That the “Recent Developments” section contained in both Company shall have delivered to the Preliminary Prospectus Managers and its counsel such documents as they may reasonably request relating to the Prospectus. The information presented in such Recent Developments section (A) has been prepared in good faith issuance and based upon assumptions that he believes are reasonable and consistent with the operations sale of the Company and (B) is a fair estimate Offered Securities or otherwise related to the matters contemplated hereby. If any of the conditions specified in this Section 5 shall not have been fulfilled in all material respects when and as provided in this Underwriting Agreement, or if any of the Company’s total revenues opinions and net income for certificates mentioned above or elsewhere in this Underwriting Agreement shall not be in all material respects reasonably satisfactory in form and substance to the three months ended June 30Managers and its counsel, 2011 this Underwriting Agreement and has been derived from all obligations of the Company’s accounting and/or financial recordsUnderwriters hereunder may be canceled at, or at any time prior to, each Closing Date by the Managers. Notice of such cancelation shall be given to the Company in writing or by telephone or telegraph confirmed in writing.
Appears in 1 contract
Conditions of Underwriters’ Obligations. The several obligations of the Underwriters hereunder, as to purchase the Securities under this Agreement are subject to the Shares to be delivered at satisfaction of each Time of Delivery, shall be subject, in their discretion, to the condition that all representations and warranties and other statements of the Company and of the Selling Stockholders herein are, at and as of such Time of Delivery, true and correct, the condition that the Company and the Selling Stockholders shall have performed all of its and their obligations hereunder theretofore to be performed, and the following additional conditions:
(a) The Prospectus All the representations and warranties of the Company contained in this Agreement shall be true and correct in all material respects on the Closing Date with the same force and effect as if made on and as of the Closing Date.
(b) On or after the date hereof, (i) there shall not have occurred any downgrading, suspension or withdrawal of, nor shall any notice have been filed with given of any potential or intended downgrading, suspension or withdrawal of, or of any review (or of any potential or intended review) for a possible change that does not indicate the Commission pursuant to Rule 424(b) under direction of the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(a) hereof; all material required to be filed by possible change in, any rating of the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433 under the Act; if or any securities of the Company has elected to rely upon (including, without limitation, the placing of any of the foregoing ratings on credit watch with negative or developing implications or under review with an uncertain direction) by any "nationally recognized statistical rating organization" as such term is defined for purposed of Rule 462(b436(g)(2) under the Act, (ii) there shall not have occurred any change, nor shall any notice have been given of any potential or intended change, in the Rule 462(boutlook for any rating of the Company or any securities of the Company by any such rating organization and (iii) Registration Statement no such rating organization shall have become effective by 10:00 p.m., Washington, D.C. time, given notice that it has assigned (or is considering assigning) a lower rating to the Securities than that on which the date of this Agreement; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction;
(b) Xxxxx Xxxxx L.L.P., counsel for the Underwriters, shall have furnished to you such written opinion or opinions, dated such Time of Delivery, in form and substance reasonably satisfactory to you, with respect to such matters as you may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;Securities were marketed.
(c) Xxxxxx & Xxxxxx L.L.P., counsel for the Company, You shall have furnished received on the Closing Date a certificate dated the Closing Date, signed by an executive officer of the Company in such capacity confirming the matters set forth in Sections 6(u), 8(a) and 8(b) and that the Company has complied with all of the agreements and satisfied all of the conditions herein contained and required to you their written opinion, dated such Time of Delivery, in form and substance satisfactory to you, be complied with or satisfied by the Company on or prior to the effect set forth on Annex IIClosing Date.
(d) Xxxxxxxx X. Xxxxx, General Counsel and Corporate Secretary of the Company, shall have furnished to you his written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex III.
(e) Xxxx Xxxxxxxxxx & Xxxxxxxxx LLP, special Indiana counsel for the Company, shall have furnished to you their written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex IV.
(f) Xxxxxx LLP, counsel for each of the Selling Stockholders, as indicated in Schedule IIA hereto, shall have furnished to you their written opinion with respect to each of the Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex V.
(g) Such local counsel as you shall reasonably require shall have furnished to you their written opinion with respect to each of the foreign Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex VI.
(h) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, UHY, LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, Flackman Xxxxxxx & Xxxxxx, P.A. shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) Neither the Company nor the Subsidiaries shall have sustained since the date of the latest audited financial statements included in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, other than as set forth or contemplated in the Pricing Prospectus and (ii) since Since the respective dates as of which information is given in the Pricing Prospectus other than as set forth in the Prospectus (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement), (i) there shall not have occurred any change or any development involving a prospective change in the financial condition or the earnings, business, management or operations of the Company and its subsidiaries, taken as a whole, (ii) there shall not have been any change or any development involving a prospective change in the capital stock or in the long-term debt of the Company or the Subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of its subsidiaries and (iii) neither the Company and the Subsidiariesnor any of its subsidiaries shall have incurred any liability or obligation, other than as set forth direct or contemplated in the Pricing Prospectuscontingent, the effect of which, in any such case described in clause (i8(d)(i), 8(d)(ii) or (iithis 8(d)(iii), in your judgment, is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and and, in the manner contemplated in the Pricing Prospectus;
(k) On or after the Applicable Timeyour judgment, there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the NYSE; (ii) a suspension or material limitation in trading in the Company’s securities on the NYSE; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Texas State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with market the public offering or the delivery of the Shares being delivered at such Time of Delivery Securities on the terms and in the manner contemplated in the Prospectus;.
(le) The Shares to be sold at such Time of Delivery You shall have been duly admitted for trading and quotation received on the NYSE;
Closing Date (mi) The Company shall have obtained and delivered to the Underwriters executed copies of a lock-up agreement from each of its directors and executive officers, the Selling Stockholders and each other stockholder identified on Schedule IV hereto, in the form attached as Annex I hereto;
an opinion (n) The Company shall have complied with the provisions of Section 5(c) hereof with respect to the furnishing of prospectuses on the New York Business Day next succeeding the date of this Agreement; and
(o) The Company and the Selling Stockholders shall have furnished or caused to be furnished to you at such Time of Delivery certificates of officers of the Company and of the Selling Stockholders, respectively, satisfactory to you as to and counsel for the accuracy Underwriters), dated the Closing Date, of Andrxxx & Xurtx X.X.P., counsel for the representations and warranties of the Company and the Selling StockholdersCompany, respectively, herein at and as of such Time of Delivery, as to the performance by the Company and the Selling Stockholders of all of their respective obligations hereunder to be performed at or prior to such Time of Delivery, and the Company shall have furnished or caused to be furnished certificates as to addressing the matters set forth in subsections on Exhibit A attached hereto, (aii) an opinion (satisfactory
(f) You shall have received on the Closing Date an opinion, dated the Closing Date, of this Section and as Liddell, Sapp, Zivley, Hill & LaBoxx, X.L.P., counsel for the Underwriters, with respect to all such other matters as you may reasonably request.
(pg) You shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to you, from Coopers & Lybrxxx X.X.P., independent public accountants, containing the information and statements of the type ordinarily included in accountants' "comfort letters" to Underwriters with respect to the financial statements and certain financial information contained in or incorporated by reference into the Registration Statement and the Prospectus.
(h) The Securities shall have been approved for listing, subject to notice of issuance, on the NYSE.
(i) The shares of Common Stock issuable upon conversion of the Securities shall have been approved for listing, subject to notice of issuance, on the NYSE.
(j) The Underwriters shall have received a counterpart, conformed as executed, of each of the Guarantor Documents which shall have been entered into by the Company and the other parties thereto.
(k) The Company shall not have furnished failed on or caused prior to the Closing Date to perform or comply with any of the agreements herein contained and required to be furnished performed or complied with by the Company on or prior to the Closing Date. The several obligations of the Underwriters to purchase any Additional Securities hereunder are subject to the delivery to you at on the Option Closing Date of such Time of Delivery a certificate of the Executive Vice President, Chief Financial Officer and Treasurer documents as you may reasonably request with respect to the effect that:
(i) He is familiar with the internal accounting records good standing of the Company, the due authorization and issuance of such Additional Securities and other matters related to the issuance of such Additional Securities.
(ii) He has reviewed the “Recent Developments” section contained in both the Preliminary Prospectus and the Prospectus. The information presented in such Recent Developments section (A) has been prepared in good faith and based upon assumptions that he believes are reasonable and consistent with the operations of the Company and (B) is a fair estimate in all material respects of the Company’s total revenues and net income for the three months ended June 30, 2011 and has been derived from the Company’s accounting and/or financial records.
Appears in 1 contract
Conditions of Underwriters’ Obligations. The several obligations of the Underwriters hereunder, as to purchase and pay for the Shares to be delivered at each Time of Delivery, shall be subject, in their discretionto the reasonable satisfaction of the Representatives, to the condition that all accuracy as of the date of execution of this Agreement, the Closing Date and the date on which the Option Shares are to be purchased, as the case may be, of the representations and warranties and other statements of the Company and of the Selling Stockholders herein are, at and as of such Time of Delivery, true and correct, the condition that the Company and the Selling Stockholders shall have performed Shareholders set forth in this Agreement, to the accuracy of the statements of the Company, its officers and the Selling Shareholders made in any certificate delivered pursuant to this Agreement, to the performance by the Company and the Selling Shareholders of all of its and their obligations hereunder theretofore to be performedperformed under this Agreement at or prior to the Closing Date or any later date on which Option Shares are to be purchased, as the case may be, to the satisfaction of all conditions to be satisfied or performed by the Company at or prior to that date and to the following additional conditions:
(a) The Prospectus Registration Statement shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(a) hereof; all material become effective (or, if a post-effective amendment is required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433 under the Act; if the Company has elected to rely upon Rule 462(b) under the Act, such post-effective amendment shall become effective and the Rule 462(b) Registration Statement Company shall have become effective by 10:00 provided evidence satisfactory to the Representatives of such filing and effectiveness) not later than 5:00 p.m., Washington, D.C. New York time, on the date of this AgreementAgreement or at such later date and time as the Representatives may approve in writing and, at the Closing Date or, with respect to the Option Shares, the date on which such Option Shares are to be purchased; no stop order suspending the effectiveness of the Registration Statement or any part thereof qualification, registration or exemption from qualification or registration for the sale of the Shares in any jurisdiction shall have been issued and no proceeding proceedings for that purpose shall have been initiated instituted or threatened by the Commission; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commissionthreatened; and all requests any request for additional information on the part of the Commission shall have been complied with to your the reasonable satisfaction;satisfaction of the Representatives and Underwriters' counsel.
(b) Xxxxx Xxxxx L.L.P.The Representatives shall have received from Troop, Steuber, Pasich, Xxxxxxx & Xxxxx, LLP, 0000 Xxxxxxx Xxxx Xxxx, 00xx Xxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000, counsel for the Underwriters, an opinion, dated as of the Closing Date or, if applicable, the date on which the Option Shares are to be purchased, and the Company shall have furnished such counsel with all documents which they may reasonably request for the purpose of enabling them to you pass upon such written matters.
(c) The Representatives shall have received on the Closing Date and on any later date on which Option Shares are purchased, as the case may be, the opinion of Stradling, Yocca, Xxxxxxx & Xxxxx, counsel for the Company and the Selling Shareholders, addressed to the Underwriters and dated as of the Closing Date or opinionssuch later date, dated such Time with reproduced copies or signed counterparts thereof for each of Deliverythe Underwriters, covering the matters set forth in Annex A to this Agreement and in form and substance reasonably satisfactory to you, with respect to such matters as you may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;
(c) Xxxxxx & Xxxxxx L.L.P., counsel for the Company, shall have furnished to you their written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex IIRepresentatives.
(d) Xxxxxxxx X. XxxxxThe Representatives shall be satisfied that there has not been any material change in the market for securities in general or in political, General Counsel and Corporate Secretary financial or economic conditions as to render it impracticable in the Representatives' sole judgment to make a public offering of the CompanyShares, shall have furnished or a material adverse change in market levels for securities in general or financial or economic conditions which render it inadvisable to you his written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex IIIproceed.
(e) Xxxx Xxxxxxxxxx & Xxxxxxxxx LLP, special Indiana counsel for the Company, The Representatives shall have furnished to you their written opinionreceived on or before the Closing Date and on any later date on which Option Shares are purchased a certificate, dated as of the Closing Date or such Time later date, as the case may be, and signed by the President and the Chief Financial Officer of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex IV.Company stating that:
(fi) Xxxxxx LLP, counsel for each the representations and warranties of the Selling Stockholders, as indicated in Schedule IIA hereto, shall have furnished to you their written opinion with respect to each of the Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect Company set forth in Annex V.Section 1 of this Agreement are true and correct with the same force and effect as if expressly made at and as of the Closing Date or such later date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date or such later date;
(gii) Such local counsel as you shall reasonably require shall have furnished to you their written opinion with respect to each no stop order suspending the effectiveness of the foreign Selling StockholdersRegistration Statement has been issued, dated and no proceedings for that purpose have been instituted or are pending or are threatened under the First Time Securities Act; and
(iii) (A) the respective signers of Deliverythe certificate have carefully examined the Registration Statement in the form in which it originally became effective and the Prospectus and any supplements or amendments to any of them and, as of the Effective Date, the statements made in form the Registration Statement and substance satisfactory the Prospectus were true and correct in all material respects and neither the Registration Statement nor the Prospectus omitted to youstate any material fact required to be stated therein or necessary in order to make the statements therein not misleading, to (B) since the effect Effective Date, no event has occurred that should have been set forth in Annex VI.
(h) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective an amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, UHY, LLP shall have furnished to you or a letter supplement or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, Flackman Xxxxxxx & Xxxxxx, P.A. shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) Neither the Company nor the Subsidiaries shall have sustained since the date of the latest audited financial statements included in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or that has not covered by insurance, or from any labor dispute or court or governmental action, order or decree, other than as been set forth in such an amendment or contemplated in the Pricing Prospectus and supplement, (iic) since the respective dates as of which information is given in the Pricing Registration Statement in the form in which it originally became effective and the Prospectus contained therein, there shall has not have been any change Consolidated Material Adverse Effect or any development involving a prospective Consolidated Material Adverse Effect, whether or not arising from transactions in the capital stock ordinary course of business, and, since such dates, except in the ordinary course of business, neither the Company nor any of its Subsidiaries has entered into any material transaction not referred to in the Registration Statement in the form in which it originally became effective and the Prospectus contained therein, (D) there are not any pending or long-term debt known threatened legal proceedings to which the Company or any of its Subsidiaries is a party or of which property of the Company or any of its Subsidiaries is the Subsidiaries subject which are material and which are not disclosed in the Registration Statement and the Prospectus and (E) there are not any license agreements, contracts, leases or other documents that are required to be filed or incorporated by reference as exhibits to the Registration Statement that have not been filed or incorporated by reference as required.
(f) The Representatives shall be satisfied that, and shall have received a certificate, dated the Closing Date from the Attorneys for each Selling Shareholder to the effect that, as of the date on which Option Shares are to be purchased, they have not been informed that:
(i) The representations and warranties made by such Selling Shareholder herein are not true or correct in any material respect on the Closing Date; or
(ii) Such Selling Shareholder has not complied with any obligation or satisfied any condition which is required to be performed or satisfied on the part of such Selling Shareholder at or prior to the Closing Date.
(g) The Representatives shall have received from Ernst & Young a letter or letters, addressed to the Underwriters and dated as of the Closing Date and any later date on which Option Shares are purchased, confirming that they are independent accountants with respect to the Company within the meaning of the Securities Act and the applicable Rules and Regulations thereunder and, based upon the procedures described in their letter, referred to below, delivered to the Representatives concurrently with the execution of this Agreement (the "Original Letter"), but carried out to a date not more than five business days prior to the Closing Date or such later date on which Option Shares are purchased, (i) confirming, to the extent true, that the statements and conclusions set forth in the Original Letter are accurate as of the Closing Date or such later date, as the case may be, and (ii) setting forth any revisions and additions to the statements and conclusions set forth in the Original Letter that are necessary to reflect any changes in the facts described in the Original Letter since the date of the Original Letter or to reflect the availability of more recent financial statements, data or information. Such letters shall not disclose any change, or any development involving a prospective change, in or affecting the general affairsbusiness, managementproperties or condition (financial or otherwise), financial position, stockholders’ equity or results of operations or prospects of the Company and the Subsidiaries, other than as set forth or contemplated in the Pricing Prospectus, the effect any of its Subsidiaries which, in any such case described in clause (i) or (ii)the Representatives' sole judgment, is in the judgment of the Representatives so material and adverse as to make makes it impracticable impractical or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time or the purchase of Delivery the Option Shares as contemplated by the Prospectus (or, if the Prospectus is not in existence, the most recent Preliminary Prospectus). In addition, the Representatives shall have received from Ernst & Young, on or prior to the Closing Date, a letter addressed to the Company and made available to the Representatives for the use of the Underwriters stating that their review of the Company's system of internal controls, to the extent they deemed necessary in establishing the scope of their examination of the Company's consolidated financial statements as of June 30, 1999, or in delivering their Original Letter, did not disclose any weaknesses in internal controls that they considered to be a material weaknesses.
(h) Prior to the Closing Date, the Shares shall have been designated national market system securities, duly authorized for listing on the terms and in the manner contemplated in the Pricing Prospectus;Nasdaq National Market upon official notice of issuance.
(ki) On or after prior to the Applicable TimeClosing Date, there the Representative shall not have occurred any received from all Holders executed agreements covering the matters described in Section 1(r) of the following: (i) a suspension or material limitation in trading in securities generally on the NYSE; (ii) a suspension or material limitation in trading in the Company’s securities on the NYSE; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Texas State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus;this Agreement.
(l) The Shares to be sold at such Time of Delivery shall have been duly admitted for trading and quotation on the NYSE;
(mj) The Company shall have obtained and delivered furnished to the Underwriters executed copies of a lock-up agreement from each of its directors Representatives such further certificates and executive officers, documents as the Selling Stockholders and each other stockholder identified on Schedule IV hereto, in the form attached as Annex I hereto;
Representatives shall reasonably request (n) The Company shall have complied with the provisions of Section 5(c) hereof with respect to the furnishing of prospectuses on the New York Business Day next succeeding the date of this Agreement; and
(o) The Company and the Selling Stockholders shall have furnished or caused to be furnished to you at such Time of Delivery including certificates of officers of the Company and of the Selling StockholdersCompany), respectively, satisfactory to you as to the accuracy of the representations and warranties of the Company and the Selling Stockholdersset forth in this Agreement, respectively, herein at and as of such Time of Delivery, as to the performance by the Company of its obligations under this Agreement and the Selling Stockholders other conditions concurrent and precedent to the obligations of all of their respective obligations hereunder the Underwriters under this Agreement. Counsel to be performed at or prior the Representatives shall provide a written memorandum to such Time of Delivery, and the Company shall have furnished identifying closing documents which such counsel deems necessary for the Underwriters' review, not less than two business days before the Closing Date. All the agreements, opinions, certificates and letters mentioned above or caused to elsewhere in this Agreement will be furnished certificates as in compliance with the provisions of this Agreement only if they are reasonably satisfactory to the matters set forth Representatives. The Company will furnish the Representatives with such number of conformed copies of such opinions, certificates, letters and documents as the Representatives shall reasonably request. If any of the conditions specified in subsections (a) of this Section and as to such other matters as you may reasonably request.
(p) The Company 7 shall not have furnished or caused to be furnished to you at such Time of Delivery a certificate of the Executive Vice President, Chief Financial Officer and Treasurer to the effect that:
(i) He is familiar with the internal accounting records of the Company.
(ii) He has reviewed the “Recent Developments” section contained in both the Preliminary Prospectus and the Prospectus. The information presented in such Recent Developments section (A) has been prepared in good faith and based upon assumptions that he believes are reasonable and consistent with the operations of the Company and (B) is a fair estimate fulfilled in all material respects when and as provided in this Agreement, time being of the Company’s total revenues essence, or if any of the opinions and net income for certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the three months ended June 30Representatives and Underwriters' counsel, 2011 this Agreement and has been derived from all obligations of the Company’s accounting and/or financial recordsUnderwriters hereunder may be canceled by the Representatives at, or at any time prior to, the Closing Date or (with respect to the Option Shares) prior to the date upon which the Option Shares are to be purchased, as the case may be. Notice of such cancellation shall be given to the Company in writing or by telephone or telecopy confirmed in writing. Any such termination shall be without liability of the Company to the Underwriters (except as provided in Section 6 or Section 9 of this Agreement) and without liability of the Underwriters to the Company (except to the extent provided in Section 9 of this Agreement).
Appears in 1 contract
Conditions of Underwriters’ Obligations. The several obligations of the Underwriters hereunderto purchase and pay for the Firm Securities and the Additional Securities, as to the Shares to be delivered at each Time of Deliveryprovided herein, shall be subjectsubject to the accuracy of the representations and warranties of the Company herein contained, in their discretionas of the date hereof and as of the Closing Date (for purposes of this Section 7, “Closing Date” shall refer to the Closing Date for the Firm Securities and any Additional Closing Date, if different, for the Additional Securities), to the condition that all representations and warranties and other statements of performance by the Company and of the Selling Stockholders herein are, at and as of such Time of Delivery, true and correct, the condition that the Company and the Selling Stockholders shall have performed all of its and their obligations hereunder theretofore to be performedhereunder, and to each of the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in a timely fashion in accordance with Section 5(a4(a) hereof; all material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433 under the Act; if the Company has elected to rely upon Rule 462(b) under the Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m., Washington, D.C. time, on the date of this Agreement; no stop order suspending the effectiveness of the Registration Statement or any part thereof post-effective amendment thereto, and no stop order suspending or preventing the use of any Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus, shall have been issued by the Commission and no proceeding for that purpose proceedings therefor shall have been initiated or threatened by the Commission; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction;; if the Company has elected to rely on Rule 462(b) under the Securities Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m. (New York City time) on the date of this Agreement; and all necessary regulatory or stock exchange approvals shall have been received.
(b) Xxxxx Xxxxx L.L.P.At the Closing Date you shall have received (i) the written opinion of Dentons US LLP, counsel for the Underwriters, shall have furnished to you such written opinion or opinionsCompany, dated such Time of Deliverythe Closing Date and addressed to the Representative, in form and substance reasonably satisfactory to youthe Representative, to the effect set forth in Exhibit B-1 hereto and (ii) the negative assurance letter of Dentons US LLP, counsel for the Company, dated the Closing Date and addressed to the Representative, in form and substance reasonably satisfactory to the Representative, to the effect set forth in Exhibit B-2 hereto and (iii) the negative assurance letter of Bxxxxxxx Ingersoll & Rooney PC, regulatory counsel for the Company, dated the Closing Date and addressed to the Representative, in form and substance reasonably satisfactory to the Representative, to the effect set forth in Exhibit B-3 hereto.
(c) At the Closing Date, you shall have received the written opinion of Underwriters’ Counsel, dated the Closing Date and addressed to the Representative, in form and substance reasonably satisfactory to the Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Pricing Disclosure Package, the Prospectus and such other matters as you may reasonably requestrequire, and such counsel the Company shall have received furnished to Underwriters’ Counsel such papers and information documents as they may reasonably request to enable for the purpose of enabling them to pass upon such matters;.
(cd) Xxxxxx & Xxxxxx L.L.P., counsel for At the Closing Date you shall have received a certificate of the Chief Executive Officer and Chief Financial Officer of the Company, shall have furnished to you their written opinion, dated such Time of Deliverythe Closing Date, in form and substance satisfactory to you, as to the effect accuracy of the representations and warranties of the Company set forth on Annex II.
(d) Xxxxxxxx X. Xxxxx, General Counsel and Corporate Secretary in Section 1 hereof as of the Companydate hereof and as of the Closing Date, shall have furnished to you his written opinion, dated such Time of Delivery, in form and substance satisfactory to you, as to the effect performance by the Company of all of its obligations hereunder to be performed at or prior to the Closing Date, as to the matters set forth on Annex IIIin subsections (a), (f) and (g) of this Section 7, and as to such other matters as you may reasonably request.
(e) Xxxx Xxxxxxxxxx & Xxxxxxxxx At the time this Agreement is executed and at the Closing Date, you shall have received a comfort letter, from EisnerAmper LLP, special Indiana counsel independent public accountants for the Company, shall have furnished to you their written opiniondated, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex IV.
(f) Xxxxxx LLP, counsel for each of the Selling Stockholdersrespectively, as indicated in Schedule IIA hereto, shall have furnished to you their written opinion with respect to each of the Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex V.
(g) Such local counsel as you shall reasonably require shall have furnished to you their written opinion with respect to each of the foreign Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex VI.
(h) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time as of Deliverythe Closing Date, UHY, LLP shall have furnished addressed to you a letter or letters, dated the respective dates of delivery thereof, Underwriters and in form and substance reasonably satisfactory to you;
(i) On the date Underwriters and Underwriters’ Counsel, containing statements and information of the Prospectus at a time prior type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to financial statements and certain financial information contained in the Registration Statement filed subsequent to Statement, the date of this Agreement Pricing Disclosure Package and also at each Time of Delivery, Flackman Xxxxxxx & Xxxxxx, P.A. shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;Prospectus.
(i) Neither the Company nor the Subsidiaries any Subsidiary shall have sustained sustained, since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus Disclosure Package, any loss or interference with its business or properties from fire, explosion, flood flood, earthquake, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or court any legal or governmental action, order or decreeproceeding, other than as set forth or contemplated in the Pricing Prospectus Disclosure Package (exclusive of any supplement thereto), except to the extent that such would not reasonably be expected to have a Material Adverse Effect; and (ii) since subsequent to the respective dates as of which information is given in the Registration Statement (exclusive of any amendment thereto subsequent to the date hereof) and the Pricing Prospectus Disclosure Package (exclusive of any supplement thereto), there shall not have been any change in the capital stock or long-term or short-term debt of the Company or the Subsidiaries any Subsidiary or any change, change or any development involving a prospective change, whether or not arising from transactions in or affecting the ordinary course of business, in the business, general affairs, management, condition (financial positionor otherwise), results of operations, stockholders’ equity equity, properties or results of operations prospects of the Company and the Subsidiaries, other than individually or taken as set forth or contemplated in the Pricing Prospectusa whole, the effect of which, in any such case described in clause (i) or (ii)above, is is, in the reasonable judgment of the Representatives Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery Offering on the terms and in the manner contemplated in the Pricing Prospectus;Disclosure Package (exclusive of any such supplement).
(kg) On or after the Applicable Time, if there shall not have occurred are any debt securities or preferred stock of, or guaranteed by, the Company or any of its subsidiaries that are rated by a “nationally recognized statistical organization,” as such term is defined in Section 3(a)(62) of the following: Exchange Act, (i) a suspension no downgrading shall have occurred in the rating accorded the Company’s debt securities or material limitation in trading in securities generally on preferred stock or the NYSE; Company’s financial strength or claims paying ability by any such organization, and (ii) a suspension no such organization shall have publicly announced that it has under surveillance or material limitation in trading in review, with possible negative implications, its rating of any of such of the Company’s debt securities or preferred stock or the Company’s financial strength or claims paying ability.
(h) No Underwriter shall have discovered and disclosed to the Company on or prior to such Closing Date that the NYSE; (iii) Registration Statement, the Pricing Disclosure Package or the Prospectus, or any amendment or supplement thereto, contains an untrue statement of a general moratorium on commercial banking activities declared by either Federal or New York or Texas State authorities or a material disruption in commercial banking or securities settlement or clearance services fact which, in the United States; (iv) reasonable opinion of Dxxxx Xxxx & Wxxxxxxx LLP, counsel for the outbreak Underwriters, is material or escalation of hostilities involving the United States or the declaration by the United States of omits to state a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financialfact which, political or economic conditions in the United States reasonable opinion of such counsel, is material and is required to be stated therein or elsewhereis necessary to make the statements therein, if the effect of any such event specified in clause (iv) or (v) in the judgment light of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and circumstances in the manner contemplated in the Prospectus;which they were made, not misleading.
(li) The Shares to be sold at such Time of Delivery Representative shall have been received a duly admitted for trading and quotation on the NYSE;
(m) The Company shall have obtained and delivered to the Underwriters executed copies of a lock-up agreement from each person who is a director or officer of its directors the Company and executive officers, the Selling Stockholders each shareholder and each other stockholder identified person or entity listed on Schedule IV III hereto, in each case substantially in the form attached hereto as Annex I hereto;Exhibit C.
(nj) The Company Maximum Number of Underlying Shares and the maximum number of Warrant Securities issuable upon exercise and settlement or termination of the warrants issued pursuant to the Base Call Spread Confirmations and any Additional Call Spread Confirmations shall have complied with been approved for listing on NASDAQ, subject to official notice of issuance.
(k) At the provisions of Section 5(c) hereof Closing Date, FINRA shall not have raised any objection with respect to the furnishing of prospectuses on the New York Business Day next succeeding the date of this Agreement; and
(o) The Company fairness and the Selling Stockholders shall have furnished or caused to be furnished to you at such Time of Delivery certificates of officers reasonableness of the Company underwriting terms and of arrangements for the Selling Stockholders, respectively, satisfactory to you as to the accuracy of the representations and warranties of the Company and the Selling Stockholders, respectively, herein at and as of such Time of Delivery, as to the performance by the Company and the Selling Stockholders of all of their respective obligations hereunder to be performed at or prior to such Time of Delivery, and the Company shall have furnished or caused to be furnished certificates as to the matters set forth in subsections (a) of this Section and as to such other matters as you may reasonably requestOffering.
(pl) The Company shall have furnished the Underwriters and Underwriters’ Counsel with such other certificates, opinions or caused to be other documents as they may have reasonably requested. If any of the conditions specified in this Section 7 shall not have been fulfilled when and as required by this Agreement, or if any of the certificates, opinions, written statements or letters furnished to you at such Time of Delivery a certificate of the Executive Vice President, Chief Financial Officer and Treasurer or to Underwriters’ Counsel pursuant to this Section 7 shall not conform to the effect that:
(i) He is familiar with the internal accounting records requirements of the Company.
(ii) He has reviewed the “Recent Developments” section contained in both the Preliminary Prospectus and the Prospectus. The information presented in such Recent Developments section (A) has been prepared in good faith and based upon assumptions that he believes are reasonable and consistent with the operations of the Company and (B) is a fair estimate this Section 7 in all material respects respects, all obligations of the Company’s total revenues Underwriters hereunder may be cancelled by the Representative at, or at any time prior to, the Closing Date and net income for the three months ended June 30obligations of the Underwriters to purchase the Additional Securities may be cancelled by the Representative at, 2011 and has been derived from or at any time prior to, the Company’s accounting and/or financial recordsAdditional Closing Date. Notice of such cancellation shall be given to the Company in writing or by telephone. Any such telephone notice shall be confirmed promptly thereafter in writing.
Appears in 1 contract
Conditions of Underwriters’ Obligations. The several obligations of the Underwriters hereunder, as hereunder to purchase the Underwritten Securities are subject to the Shares to be delivered at performance by each Time of Delivery, shall be subject, in their discretion, to the condition that all representations and warranties and other statements of the Company and of the Selling Stockholders herein areCompany, at and as of such Time of DeliveryWestinghouse and, true and correctif Transferee is a party hereto, the condition that the Company and the Selling Stockholders shall have performed all Transferee of its and their obligations hereunder theretofore and to be performed, and the following additional conditions:
(a) The Prospectus If any post-effective amendment to the Registration Statement shall not have been filed with declared effective prior to the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for execution hereof, such filing by the rules and regulations under the Act and in accordance with Section 5(a) hereof; all material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433 under the Act; if the Company has elected to rely upon Rule 462(b) under the Act, the Rule 462(b) Registration Statement post-effective amendment shall have become effective by 10:00 p.m.not later than 5:00 P.M., Washington, D.C. New York City time, on the date of this Agreementhereof; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued be in effect, and no proceeding proceedings for that such purpose shall have been initiated or threatened by the Commission; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated be pending before or threatened by the Commission; and all any requests for additional information on the part of by the Commission shall have been complied with to your reasonable satisfaction;the satisfaction of the Representatives.
(b) Xxxxx Xxxxx L.L.P.The representations and warranties of the Company, counsel for Westinghouse and, if Transferee is a party hereto, Transferee contained herein shall be true and correct on and as of the UnderwritersClosing Date as if made on and as of the Closing Date, and each of the Company, Westinghouse and, if Transferee is a party hereto, Transferee shall have furnished complied with all agreements and all conditions on its part to you such written opinion be performed or opinions, dated such Time of Delivery, in form and substance reasonably satisfactory satisfied hereunder at or prior to you, with respect to such matters as you may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;the Closing Date.
(c) Xxxxxx & Xxxxxx L.L.P., counsel for Since the Company, shall have furnished to you their written opinion, dated such Time respective dates as of Delivery, which information is given in form and substance satisfactory to you, to the effect set forth on Annex II.
(d) Xxxxxxxx X. Xxxxx, General Counsel and Corporate Secretary of the Company, shall have furnished to you his written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex III.
(e) Xxxx Xxxxxxxxxx & Xxxxxxxxx LLP, special Indiana counsel for the Company, shall have furnished to you their written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex IV.
(f) Xxxxxx LLP, counsel for each of the Selling Stockholders, as indicated in Schedule IIA hereto, shall have furnished to you their written opinion with respect to each of the Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex V.
(g) Such local counsel as you shall reasonably require shall have furnished to you their written opinion with respect to each of the foreign Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex VI.
(h) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to and the date of this Agreement and also at each Time of DeliveryProspectus, UHY, LLP there shall not have furnished to you been any Material Adverse Change or any development involving a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, Flackman Xxxxxxx & Xxxxxx, P.A. shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) Neither the Company nor the Subsidiaries shall have sustained since the date of the latest audited financial statements included in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decreeProspective Material Adverse Change, other than as set forth or contemplated in the Pricing Prospectus Registration Statement and the Prospectus, the effect of which in the judgment of the Representatives makes it impracticable to proceed with the public offering or the delivery of the Underwritten Securities on the terms and in the manner contemplated in the Registration Statement and the Prospectus.
(d) The Underwriters shall have received on and as of the Closing Date a certificate of an executive officer of the Company reasonably satisfactory to the Representatives to the effect set forth in subsections (a) and (iib) (insofar as subsection (b) pertains to the Company) of this Section 9 and to the further effect that since the respective dates as of which information is given in the Pricing Registration Statement and the Prospectus there shall has not have been occurred any change in the capital stock or long-term debt of the Company or the Subsidiaries or any change, Material Adverse Change or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and the SubsidiariesProspective Material Adverse Change, other than as set forth or contemplated in the Pricing Registration Statement and the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Pricing Prospectus;.
(k) On or after the Applicable Time, there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the NYSE; (ii) a suspension or material limitation in trading in the Company’s securities on the NYSE; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Texas State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus;
(le) The Shares to be sold at such Time of Delivery Underwriters shall have been duly admitted for trading and quotation received on the NYSE;
(m) The Company shall have obtained and delivered to the Underwriters executed copies of a lock-up agreement from each of its directors and executive officers, the Selling Stockholders and each other stockholder identified on Schedule IV hereto, in the form attached as Annex I hereto;
(n) The Company shall have complied with the provisions of Section 5(c) hereof with respect to the furnishing of prospectuses on the New York Business Day next succeeding the date of this Agreement; and
(o) The Company and the Selling Stockholders shall have furnished or caused to be furnished to you at such Time of Delivery certificates of officers of the Company and of the Selling Stockholders, respectively, satisfactory to you as to the accuracy of the representations and warranties of the Company and the Selling Stockholders, respectively, herein at and as of such Time the Closing Date a certificate of Deliveryan executive officer of each of Westinghouse and, as if Transferee is a party hereto, Transferee reasonably satisfactory to the performance by the Company and the Selling Stockholders of all of their respective obligations hereunder to be performed at or prior to such Time of Delivery, and the Company shall have furnished or caused to be furnished certificates as Representatives to the matters effect set forth in subsections subsection (ab) (insofar as subsection (b) pertains to such entity) of this Section and as to such other matters as you may reasonably request9.
(pf) The Company Underwriters shall have furnished or caused received on the Closing Date a signed opinion of Ballxxx Xxxxx Xxxxxxx & Xngexxxxx, Xxryland counsel for the Company, dated the Closing Date, addressed to be furnished the Underwriters and satisfactory to you at such Time of Delivery a certificate of Cahixx Xxxxxx & Xeinxxx, xxunsel for the Executive Vice PresidentUnderwriters, Chief Financial Officer and Treasurer to the effect that:
(i) He the Company has been duly organized and is familiar validly existing under the laws of the State of Maryland, is in good standing with the internal accounting records State Department of Assessments and Taxation of Maryland and has the Company.corporate power to own, lease and operate its properties and to conduct its business substantially as described in the Registration Statement and the Prospectus;
(ii) He each of Fidelio U.S. and MSI has reviewed been duly organized and is validly existing and in good standing under the “Recent Developments” section laws of the State of Delaware and has the corporate power and corporate authority to own, lease and operate its properties and to conduct its business;
(iii) all of the issued and outstanding shares of Common Stock (including the Securities) have been duly authorized by the Company, are validly issued and are fully paid and nonassessable and are not subject to any preemptive or, so far as is known to such counsel, other similar rights other than those contained in both the Preliminary Prospectus Charter;
(1) except for the items listed on Annex B attached hereto and so far as is known to such counsel, all of the outstanding shares of capital stock of the Subsidiaries owned by the Company are owned free and clear of any mortgage, pledge, security interest, lien, claim or other encumbrance or restriction on transfer; (2) all of the outstanding capital stock of each of Fidelio U.S. and MSI has been duly authorized and validly issued and is fully paid and nonassessable; and (3) so far as is known to such counsel, there are no outstanding (a) securities or obligations convertible into or exchangeable for any shares of capital stock of the Company, Fidelio U.S. or MSI, (b) rights, warrants or options to acquire or purchase from the Company, Fidelio U.S. or MSI any shares of capital stock of the Company, Fidelio U.S. or MSI (except for outstanding options under the Company's 1991 Stock Option Plan and 1981 Stock Option Plan as disclosed in the Proxy Statement or in the Registration Statement and the Prospectus. The information presented in ) or any such Recent Developments section convertible or exchangeable securities or obligations or (Ac) obligations or understandings of the Company, Fidelio U.S. or MSI to issue or sell any shares of capital stock of the Company, Fidelio U.S. or MSI, any such convertible or exchangeable securities or obligations, or any such rights, warrants or options, except as set forth on Annex B;
(v) this Agreement has been prepared duly authorized, executed and delivered by the Company;
(vi) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, and the consummation by the Company of the transactions contemplated herein, do not and will not (a) result in good faith any violation of any provision of the Charter, the By-laws or the certificate of incorporation or by-laws of Fidelio U.S. or MSI; (b) contravene any provision of any applicable law, rule or regulation of the State of Maryland, except such as would not have a Material Adverse Effect; (c) contravene any judgment, order or decree known to such counsel by which the Company or Fidelio U.S. or MSI is bound or by which their properties or assets may be affected; or (d) require any authorization, approval, consent or license of, or filing with, any government, governmental instrumentality or court of the State of Maryland or the State of Delaware, except such as may be required under the securities or Blue Sky laws of the State of Maryland or the State of Delaware;
(vii) the issued and based upon assumptions that he believes are reasonable outstanding stock of the Company is as set forth on the signature page hereto; and
(viii) the statements under the caption "Description of Capital Stock" in the Registration Statement and consistent the Prospectus, insofar as such statements constitute a summary of the legal matters or documents referred to therein, fairly present in all material respects the information required by the Securities Act with respect to such legal matters or documents. In rendering such opinions, such counsel may rely, as to matters of fact, to the operations extent such counsel deems proper, on certificates of responsible officers of the Company and each of its Subsidiaries and certificates or other written statements of officials of jurisdictions having custody of documents respecting the corporate existence or good standing of the Company, Fidelio U.S. and MSI.
(g) The Underwriters shall have received on the Closing Date a signed opinion of Chadxxxxxx & Xarkx, xxunsel for the Company, dated the Closing Date, addressed to the Underwriters and satisfactory to Cahixx Xxxxxx & Xeinxxx, xxunsel for the Underwriters, to the effect that: (i) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, and the consummation by the Company of the transactions contemplated herein, do not and will not (a) conflict with, or result in a breach or violation of, any terms or provisions of or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or give rise to any right to accelerate the maturity or require the prepayment of any indebtedness or any right of termination under, or result in the creation or imposition of any lien, charge or encumbrance upon any properties or assets of the Company, Fidelio U.S. and MSI pursuant to the terms of, any document filed as an exhibit to the Registration Statement or to any document incorporated by reference therein or any other material agreement known to such counsel to which the Company, Fidelio U.S. or MSI is a party or by which any of their properties or assets may be subject; (b) contravene any provision of any applicable law, rule or regulation (the "Applicable Laws") (subject to obtaining such approvals as may be required under the securities or Blue Sky laws of the various states and other jurisdictions of the United States of America), except such as would not have a Material Adverse Effect; (c) contravene any judgment, order or decree known to such counsel by which the Company, Fidelio U.S. or MSI is bound or by which their properties or assets may be affected; or (d) require any authorization, approval, consent or license of, or filing with, any government, governmental instrumentality or court, domestic or foreign, except such as have been obtained and are in full force and effect under the Securities Act or as may be required under the securities or Blue Sky laws of the various states and other jurisdictions of the United States;
(ii) except as described in the Registration Statement and the Prospectus, to such counsel's knowledge, there is no (A) investigation, action, suit or proceeding before or by any government, governmental instrumentality or court now pending or threatened against or affecting the Company, Fidelio U.S. or MSI or any of their respective properties or assets that is required by the Securities Act to be described in the Registration Statement or the Prospectus and is not so described or (B) contract or other document that is a fair estimate required by the Securities Act to be described in or referred to in the Registration Statement or the Prospectus, or to be filed as an exhibit to the Registration Statement, that is not described, referred to or filed as required;
(iii) to such counsel's knowledge, neither the filing of the Registration Statement nor the offer or sale of the Securities to the Underwriters in the manner contemplated in this Agreement gives rise to any rights for or relating to the registration under the Securities Act of any other securities of the Company, Fidelio U.S. or MSI;
(iv) the Registration Statement and the Prospectus and all amendments and supplements thereto (except for the financial statements, schedules and other financial and statistical data included or incorporated by reference in the Registration Statement and the Prospectus, as to which counsel need not express an opinion) comply as to form in all material respects with the requirements of the Securities Act, and each document filed pursuant to the Exchange Act and incorporated by reference in the Registration Statement and the Prospectus (except for the financial statements, schedules and other financial and statistical data included therein, as to which counsel need not express an opinion) complied as to form in all material respects with the requirements of the Exchange Act when filed with the Commission;
(v) the Company is not an "investment company" as such term is defined in the Investment Company Act of 1940, as amended, or a holding company under the Public Utility Holding Company Act of 1935; and
(vi) each of the Company’s total revenues , Fidelio U.S. and net income MSI is qualified to do business and is in good standing as a foreign corporation under the laws of each jurisdiction of the United States in which its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or to be in good standing, individually or in the aggregate, would not have a Material Adverse Effect. In rendering such opinions, such counsel may rely (A) as to matters involving the application of the laws of the State of Maryland, to the extent such counsel deems proper and to the extent specified in such opinion, if at all, upon the opinion of Ballxxx Xxxxx Xxxxxxx & Xngexxxxx xxxdered pursuant to paragraph (f) of this Section 9; and (B) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and each of its Subsidiaries and certificates or other written statements of officials of jurisdictions having custody of documents respecting the corporate existence or good standing of the Company, Fidelio U.S. and MSI. The opinion of such counsel for the three months ended June 30Company shall state that the opinion of any such other counsel is in form satisfactory to such counsel and, 2011 in such counsel's opinion, the Underwriters and they are justified in relying thereon. Such counsel shall also state that it has been derived from advised by the Company’s accounting and/or Commission that the Registration Statement became effective under the Securities Act; that any required filings of the Prospectus pursuant to Rule 424(b) have been made in the manner and within the time period required by Rule 424(b); and that, to its knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted, are pending or threatened under the Securities Act. Such counsel shall also state that, although such counsel does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement or the Prospectus, no facts have come to such counsel's attention which would lead such counsel to believe that the Registration Statement (including the documents incorporated by reference therein), at the time it became effective, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (including the documents incorporated by reference therein), as of the date of the Prospectus Supplement and as of the Closing Date, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (but such counsel need not comment with respect to the financial recordsstatements, schedules and other financial and statistical data included or incorporated by reference in the Registration Statement and the Prospectus).
Appears in 1 contract
Conditions of Underwriters’ Obligations. The several obligations of the Underwriters hereunderto purchase and pay for the Firm Shares and the Additional Shares, as to the Shares to be delivered at each Time of Deliveryprovided herein, shall be subjectsubject to the accuracy of the representations and warranties of the Company herein contained, in their discretionas of the date hereof and as of the applicable Closing Date (for purposes of this Section 5, “Closing Date” shall refer to the Closing Date for the Firm Shares and any Additional Closing Date, if different, for the Additional Shares), to the condition that all representations and warranties and other statements of performance by the Company and of the Selling Stockholders herein are, at and as of such Time of Delivery, true and correct, the condition that the Company and the Selling Stockholders shall have performed all of its and their obligations hereunder theretofore to be performedhereunder, and to each of the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in a timely fashion in accordance with Section 5(a3(i)(a) hereof; all material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433 under the Act; if the Company has elected to rely upon Rule 462(b) under the Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m., Washington, D.C. time, on the date of this Agreement; hereof; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued post-effective amendment thereto, and no proceeding for that purpose shall have been initiated or threatened by the Commission; no stop order suspending or preventing the use of the Prospectus or any Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus, shall have been issued by the Commission and no proceedings therefor shall have been initiated or threatened by the Commission; and Commission; all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction;satisfaction; if the Company has elected to rely on Rule 462(b) under the Securities Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m. (New York City time) on the date of this Agreement; and all necessary regulatory or stock exchange approvals shall have been received.
(b) At the Closing Date you shall have received (i) the written opinion and negative assurance statement of Mxxxxx, Xxxxx Xxxxx L.L.P.& Bockius LLP, counsel for the UnderwritersCompany, shall have furnished dated the Closing Date and addressed to you such the Representative, in form and substance reasonably satisfactory to you; and (ii) the written opinion or opinionsof Kxxxxxxxx Xxxx LLC, intellectual property counsel for the Company, dated such Time of Deliverythe Closing Date and addressed to the Representative, in form and substance reasonably satisfactory to you, with respect to such matters as you may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;.
(c) Xxxxxx & Xxxxxx L.L.P.At the Closing Date, counsel for you shall have received the written opinion and negative assurance statement of Underwriters’ Counsel, dated the Closing Date and addressed to the Representative, in form and substance satisfactory to you.
(d) At the Closing Date you shall have received a certificate of the Chief Executive Officer and Chief Financial Officer of the Company, shall have furnished to you their written opinion, dated such Time of Deliverythe Closing Date, in form and substance satisfactory to you, as to the effect accuracy of the representations and warranties of the Company set forth on Annex IIin Section 1 hereof as of the date hereof and as of the Closing Date, as to the performance by the Company of all of its obligations hereunder to be performed at or prior to the Closing Date, as to the matters set forth in subsections (a) and (f) of this Section 5, and as to such other matters as you may reasonably request.
(de) Xxxxxxxx X. XxxxxAt the time this Agreement is executed and at the Closing Date, General Counsel and Corporate Secretary of you shall have received a comfort letter, from Ernst & Young LLP, independent public accountants for the Company, shall have furnished dated, respectively, as of the date of this Agreement and as of the Closing Date, addressed to you his written opinion, dated such Time of Delivery, the Underwriters and in form and substance satisfactory to youthe Underwriters and Underwriters’ Counsel, to the effect set forth on Annex III.
(e) Xxxx Xxxxxxxxxx & Xxxxxxxxx LLP, special Indiana counsel for the Company, shall have furnished to you their written opinion, dated such Time of Delivery, in form containing statements and substance satisfactory to you, to the effect set forth on Annex IV.
(f) Xxxxxx LLP, counsel for each information of the Selling Stockholders, as indicated type ordinarily included in Schedule IIA hereto, shall have furnished accountants’ “comfort letters” to you their written opinion underwriters with respect to each of the Selling Stockholders, dated the First Time of Delivery, financial statements and certain financial information contained in form and substance satisfactory to you, to the effect set forth in Annex V.
(g) Such local counsel as you shall reasonably require shall have furnished to you their written opinion with respect to each of the foreign Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex VI.
(h) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to Statement, the date of this Agreement Pricing Disclosure Package and also at each Time of Delivery, UHY, LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, Flackman Xxxxxxx & Xxxxxx, P.A. shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;Prospectus.
(i) Neither the Company nor the Subsidiaries any of its subsidiaries shall have sustained sustained, since the date of the latest audited financial statements included or incorporated by reference in the Registration Statement, the Pricing Prospectus Disclosure Package and the Prospectus, any material loss or interference with its business or properties from fire, explosion, flood flood, earthquake, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or court any legal or governmental action, order or decreeproceeding, other than as set forth or contemplated in the Registration Statement, the Pricing Disclosure Package and the Prospectus (exclusive of any supplement thereto); and (ii) since subsequent to the respective dates as of which information is given in the Registration Statement (exclusive of any amendment thereto subsequent to the date hereof) and the Pricing Disclosure Package and the Prospectus (exclusive of any supplement thereto), there shall not have been any change in the capital stock or long-term or short-term debt of the Company or the Subsidiaries any of its subsidiaries or any change, change or any development involving a prospective change, whether or not arising from transactions in or affecting the ordinary course of business, in the business, general affairs, management, condition (financial positionor otherwise), results of operations, stockholders’ equity equity, properties or results of operations prospects of the Company and the Subsidiariesits subsidiaries, other than individually or taken as set forth or contemplated in the Pricing Prospectusa whole, the effect of which, in any such case described in clause (i) or (ii)above, is is, in the judgment of the Representatives Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery Offering on the terms and in the manner contemplated in the Registration Statement, the Pricing Prospectus;
Disclosure Package and the Prospectus (k) On or after the Applicable Time, there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the NYSE; (ii) a suspension or material limitation in trading in the Company’s securities on the NYSE; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Texas State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect exclusive of any such event specified in clause supplement).
(ivg) No Underwriter shall have discovered and disclosed to the Company on or (v) prior to such Closing Date that the Registration Statement, the Pricing Disclosure Package or the Prospectus, or any amendment or supplement thereto, contains an untrue statement of a fact which, in the judgment opinion of Underwriters’ Counsel, is material or omits to state a fact which, in the opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(h) As of the Representatives makes it impracticable date of this Agreement, the Representative shall have received a duly executed Lock-Up Agreement from each person who is a director or inadvisable to proceed with the public offering or the delivery executive officer of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus;
(l) The Shares to be sold at such Time of Delivery shall have been duly admitted for trading and quotation on the NYSE;
(m) The Company shall have obtained and delivered to the Underwriters executed copies of a lock-up agreement from each of its directors and executive officers, the Selling Stockholders and each stockholder and other stockholder identified person or entity listed on Schedule IV hereto, in each case substantially in the form attached hereto as Annex I hereto;Exhibit A.
(ni) The Company On or before the Closing Date, FINRA shall have complied with the provisions of Section 5(c) hereof confirmed that it has not raised any objection with respect to the furnishing fairness and reasonableness of prospectuses on the New York Business Day next succeeding underwriting terms and arrangements relating to the date Offering of this Agreement; andthe Shares.
(oj) The Company and At the Selling Stockholders shall have furnished Closing Date, all stock transfer or caused other taxes (other than income taxes), if any, that are required to be furnished to you at such Time of Delivery certificates of officers paid in connection with the sale and transfer of the Company and of the Selling Stockholders, respectively, satisfactory Shares to you as to the accuracy of the representations and warranties of the Company and the Selling Stockholders, respectively, herein at and as of such Time of Delivery, as to the performance be sold by the Company and to the Selling Stockholders of all of their respective obligations several Underwriters hereunder to will be performed at fully paid or prior to such Time of Deliveryprovided for by the Company, and the Company shall have furnished or caused to all laws imposing such taxes will be furnished certificates as to the matters set forth in subsections (a) of this Section and as to such other matters as you may reasonably requestfully complied with.
(pk) The Company shall have furnished the Underwriters and Underwriters’ Counsel with such other certificates, opinions or caused to be furnished to other documents as they may have reasonably requested.
(l) At the time this Agreement is executed and at the Closing Date, you at such Time of Delivery shall have received a certificate of from the Executive Vice President, Chief Financial Officer and Treasurer to the effect that:
(i) He is familiar with the internal accounting records of the Company.
(ii) He has reviewed , in form and substance reasonably satisfactory to you, concerning the “Recent Developments” section accuracy of certain financial information contained in both the Preliminary Prospectus Registration Statement, the Pricing Disclosure Package and the Prospectus. The information presented in such Recent Developments section (A) has been prepared in good faith and based upon assumptions that he believes are reasonable and consistent with the operations If any of the Company conditions specified in this Section 5 shall not have been fulfilled when and (B) is a fair estimate in all material respects as required by this Agreement, or if any of the Company’s total revenues certificates, opinions, written statements or letters furnished to you or to Underwriters’ Counsel pursuant to this Section 5 shall not be satisfactory in form and net income for substance to the three months ended June 30Representative and to Underwriters’ Counsel, 2011 all obligations of the Underwriters hereunder may be cancelled by the Representative at, or at any time prior to, the Closing Date and has been derived from the Company’s accounting and/or financial recordsobligations of the Underwriters to purchase the Additional Shares may be cancelled by the Representative at, or at any time prior to, any Additional Closing Date. Notice of such cancellation shall be given to the Company in writing or by telephone. Any such telephone notice shall be confirmed promptly thereafter in writing.
Appears in 1 contract
Sources: Underwriting Agreement (Onconova Therapeutics, Inc.)
Conditions of Underwriters’ Obligations. The several obligations of the Underwriters hereunderto purchase and pay for the Firm Shares and the Additional Shares, as to the Shares to be delivered at each Time of Deliveryprovided herein, shall be subjectsubject to the accuracy of the representations and warranties of the Company herein contained, in their discretionas of the date hereof and as of the applicable Closing Date (for purposes of this Section 7, “Closing Date” shall refer to the Closing Date for the Firm Shares and any Additional Closing Date, if different, for the Additional Shares), to the condition that all representations and warranties and other statements of performance by the Company and of the Selling Stockholders herein are, at and as of such Time of Delivery, true and correct, the condition that the Company and the Selling Stockholders shall have performed all of its and their obligations hereunder theretofore to be performedhereunder, and to each of the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in a timely fashion in accordance with Section 5(a4(a) hereof; all material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433 under the Act; if the Company has elected to rely upon Rule 462(b) under the Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m., Washington, D.C. time, on the date of this Agreement; no stop order suspending the effectiveness of the Registration Statement or any part thereof post-effective amendment thereto, and no stop order suspending or preventing the use of any Preliminary Prospectus, any Issuer Free Writing Prospectus, or the Prospectus, shall have been issued by the Commission and no proceeding for that purpose proceedings therefor shall have been initiated or threatened by the Commission; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your the Representative’s reasonable satisfaction;; if the Company has elected to rely on Rule 462(b) under the Securities Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m. (New York City time) on the date of this Agreement; and all necessary regulatory or stock exchange approvals shall have been received.
(b) Xxxxx Xxxxx L.L.P.At the Closing Date, the Representative shall have received (i) the written opinion and negative assurance statement of Xxxx Xxxxxxxx LLP, counsel for the Underwriters, shall have furnished to you such Company and (ii) the written opinion or opinionsof Xxxxxxxxxx Hyatt Xxxxxx Xxxxxxx, LLP, Nevada counsel for the Company, dated such Time of Deliverythe Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to you, with respect to such matters as you may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;the Representative.
(c) Xxxxxx At the Closing Date, the Representative shall have received the written opinion of Fish & Xxxxxx L.L.P.Xxxxxxxxxx P.C., intellectual property counsel for the Company, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representative.
(d) At the Closing Date, the Representative shall have furnished to you their received the written opinionopinion and negative assurance statement of Underwriters’ Counsel, dated such Time of Deliverythe Closing Date and addressed to the Underwriters, in form and substance satisfactory to youthe Representative, with respect to the effect set forth on Annex IIissuance and sale of the Shares, the Registration Statement, the Pricing Disclosure Package, the Prospectus and such other matters as the Representative may require, and the Company shall have furnished to Underwriters’ Counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(de) Xxxxxxxx X. XxxxxAt the Closing Date, General Counsel the Representative shall have received a certificate of the Chief Executive Officer and Corporate Secretary principal financial officer of the Company, shall have furnished to you his written opinion, dated such Time of Deliverythe Closing Date, in form and substance satisfactory to you, the Representative as to the effect accuracy of the representations and warranties of the Company set forth on Annex IIIin Section 1 hereof as of the date hereof and as of the Closing Date, as to the performance by the Company of all of its obligations hereunder to be performed at or prior to the Closing Date, as to the matters set forth in subsections (a) and (g) of this Section 7, and as to such other matters as the Representative may reasonably request.
(ef) Xxxx Xxxxxxxxxx & Xxxxxxxxx At the time this Agreement is executed and at the Closing Date, the Representative shall have received a comfort letter, from KPMG LLP, special Indiana counsel independent registered public auditing firm for the Company, shall have furnished dated, respectively, as of the date of this Agreement and as of the Closing Date, addressed to you their written opinion, dated such Time of Delivery, the Underwriters and in form and substance satisfactory to youthe Underwriters and Underwriters’ Counsel, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the effect set forth on Annex IVfinancial statements and certain financial information contained in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
(f) Xxxxxx LLP, counsel for each of the Selling Stockholders, as indicated in Schedule IIA hereto, shall have furnished to you their written opinion with respect to each of the Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex V.
(g) Such local counsel as you shall reasonably require shall have furnished to you their written opinion with respect to each of the foreign Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex VI.
(h) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, UHY, LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, Flackman Xxxxxxx & Xxxxxx, P.A. shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) Neither the Company nor the Subsidiaries any Subsidiary shall have sustained sustained, since the date of the latest audited financial statements included or incorporated by reference in the Registration Statement, the Pricing Prospectus Disclosure Package and the Prospectus, any material loss or interference with its business or properties from fire, explosion, flood flood, earthquake, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or court any legal or governmental action, order or decreeproceeding, other than as set forth or contemplated in the Registration Statement, the Pricing Disclosure Package and the Prospectus (exclusive of any supplement thereto); and (ii) since subsequent to the respective dates as of which information is given in the Registration Statement (exclusive of any amendment thereto subsequent to the date hereof) and the Pricing Disclosure Package and the Prospectus (exclusive of any supplement thereto), there shall not have been any material change in the capital stock or long-term or short-term debt of the Company or the Subsidiaries or any change, change or any development involving a prospective change, whether or not arising from transactions in or affecting the ordinary course of business, in the business, general affairs, management, condition (financial positionor otherwise), results of operations, stockholders’ equity equity, properties or results of operations prospects of the Company and the Subsidiaries, other than individually or taken as set forth or contemplated in the Pricing Prospectusa whole, the effect of which, in any such case described in clause (i) or (ii)above, is is, in the judgment of the Representatives Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery Offering on the terms and in the manner contemplated in the Registration Statement, the Pricing Prospectus;Disclosure Package and the Prospectus (exclusive of any such supplement).
(kh) On No Underwriter shall have discovered and disclosed to the Company on or after the Applicable Time, there shall not have occurred prior to such Closing Date that any of the following: Registration Statement, the Pricing Disclosure Package or the Prospectus, or any amendment or supplement thereto, contains an untrue statement of a fact which, in the opinion of Underwriters’ Counsel, is material or omits to state a fact which, in the opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(i) a suspension or material limitation in trading in securities generally on the NYSE; (ii) a suspension or material limitation in trading in the Company’s securities on the NYSE; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Texas State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment As of the Representatives makes it impracticable or inadvisable to proceed with date of this Agreement, the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus;
(l) The Shares to be sold at such Time of Delivery Representative shall have been received a duly admitted for trading and quotation on the NYSE;
(m) The Company shall have obtained and delivered to the Underwriters executed copies of a lock-up agreement substantially in the form of Exhibit B hereto (a “Lock-Up Agreement”) from each person who is a director or executive officer of its directors and executive officers, the Selling Stockholders and each other stockholder identified Company listed on Schedule IV hereto, in each case substantially in the form attached hereto as Annex I hereto;Exhibit B.
(nj) The At the Closing Date, the Company shall have complied filed a Notification: Listing of Additional Shares with Nasdaq (the “Nasdaq Notice”) and shall have received no objection thereto from Nasdaq. If Nasdaq shall have raised any objections in connection with the provisions Nasdaq Notice prior to the Closing Date, the Company shall immediately notify Underwriters’ counsel. As soon as available, the Company shall deliver to Underwriters’ counsel an email from Nasdaq confirming the completion of Section 5(cNasdaq’s review of the Nasdaq Notice.
(k) hereof FINRA shall not have raised any objection with respect to the furnishing of prospectuses on the New York Business Day next succeeding the date of this Agreement; and
(o) The Company fairness and the Selling Stockholders shall have furnished or caused to be furnished to you at such Time of Delivery certificates of officers reasonableness of the Company underwriting terms and arrangements relating to the Offering of the Selling Stockholders, respectively, satisfactory to you as to the accuracy of the representations and warranties of the Company and the Selling Stockholders, respectively, herein at and as of such Time of Delivery, as to the performance by the Company and the Selling Stockholders of all of their respective obligations hereunder to be performed at or prior to such Time of Delivery, and the Company shall have furnished or caused to be furnished certificates as to the matters set forth in subsections (a) of this Section and as to such other matters as you may reasonably requestShares.
(pl) The Company shall have furnished the Underwriters and Underwriters’ Counsel with such other certificates, opinions or caused to be other documents as they may have reasonably requested. If any of the conditions specified in this Section 7 shall not have been fulfilled when and as required by this Agreement, or if any of the certificates, opinions, written statements or letters furnished to you at such Time of Delivery a certificate the Representative or to Underwriters’ Counsel pursuant to this Section 7 shall not be satisfactory in form and substance to the Representative and to Underwriters’ Counsel, all obligations of the Executive Vice PresidentUnderwriters hereunder may be cancelled by the Representative at, Chief Financial Officer or at any time prior to, the Closing Date and Treasurer the obligations of the Underwriters to purchase the Additional Shares may be cancelled by the Representative at, or at any time prior to, any Additional Closing Date. Notice of such cancellation shall be given to the effect that:
(i) He is familiar with the internal accounting records of the CompanyCompany in writing or by telephone. Any such telephone notice shall be confirmed promptly thereafter in writing.
(ii) He has reviewed the “Recent Developments” section contained in both the Preliminary Prospectus and the Prospectus. The information presented in such Recent Developments section (A) has been prepared in good faith and based upon assumptions that he believes are reasonable and consistent with the operations of the Company and (B) is a fair estimate in all material respects of the Company’s total revenues and net income for the three months ended June 30, 2011 and has been derived from the Company’s accounting and/or financial records.
Appears in 1 contract
Conditions of Underwriters’ Obligations. The several obligations of the Underwriters hereunderto purchase and pay for the Firm Securities and the Additional Securities, as to the Shares to be delivered at each Time of Deliveryprovided herein, shall be subjectsubject to the accuracy of the representations and warranties of the Company herein contained, in their discretionas of the date hereof and as of the Closing Date (for purposes of this Section 6, "Closing Date" shall refer to the Closing Date for the Firm Securities and any Additional Closing Date, if different, for the Additional Securities), to the condition absence from any opinions furnished to you or to Underwriters' Counsel pursuant to this Section 6 of any misstatement or omission, to the absence from any certificates, written statements or letters furnished to you or to Underwriters' Counsel pursuant to this Section 6 of any misstatement or omission in the case of any statement that all representations is qualified as to materiality and warranties and other statements any material misstatement or omission in the case of any statement that is not qualified as to materiality, to the performance by the Company and of the Selling Stockholders herein are, at and as of such Time of Delivery, true and correct, the condition that the Company and the Selling Stockholders shall have performed all of its and their obligations hereunder theretofore to be performedhereunder, and to each of the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in a timely fashion in accordance with Section 5(a4(a)(i) hereof; all material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433 under the Act; if the Company has elected to rely upon Rule 462(b) under the Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m., Washington, D.C. time, on the date of this Agreement; no stop order suspending the effectiveness of the Registration Statement or any part thereof post-effective amendment thereto and no stop order suspending or preventing the use of any Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus, shall have been issued by the Commission and no proceeding for that purpose proceedings therefor shall have been initiated or threatened by the Commission; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction;; if the Company has elected to rely on Rule 462(b) under the Securities Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 P.M. (New York City time) on the date of this Agreement; and all necessary foreign and domestic regulatory or stock exchange approvals shall have been received.
(b) Xxxxx Xxxxx L.L.P.At the Closing Date, the Underwriters shall have received the written opinion of Xxxxxx & Xxxxxx LLP, United States counsel for the Underwriters, shall have furnished to you such written opinion or opinionsCompany, dated such Time of Deliverythe Closing Date, addressed to the Underwriters, in form and substance reasonably satisfactory to youthe Representatives.
(c) At the Closing Date, the Underwriters shall have received the written opinion and negative assurance letter of Xxxxxx & Xxxxxx LLP, Xxxxxxxx Islands counsel for the Company, dated the Closing Date, addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives.
(d) At the Closing Date, the Underwriters shall have received the written opinion of Xxxxxxx, Xxxxx & Xxxxx, Panamanian counsel for the Company, dated the Closing Date, addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives.
(e) At the Closing Date, the Underwriters shall have received the written opinion of Timagenis Law Firm, Greek counsel for the Company, dated the Closing Date, addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives.
(f) At the Closing Date, the Underwriters shall have received the written opinions of Areti Charidemou & Associates LLC, Cypriot counsel for the Company, dated the Closing Date, addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives.
(g) All proceedings taken in connection with the sale of the Firm Securities and the Additional Securities as herein contemplated shall be satisfactory in form and substance to the Underwriters and to Underwriters' Counsel, and the Underwriters shall have received from Underwriters' Counsel a written opinion, dated as of the Closing Date, with respect to the sale of the Securities, the Registration Statement, the Pricing Disclosure Package and the Prospectus and such other related matters as you the Underwriters may reasonably requestrequire, and such counsel the Company shall have received furnished to Underwriters' Counsel such papers and information documents as they may reasonably request to enable for the purpose of enabling them to pass upon such matters;
(c) Xxxxxx & Xxxxxx L.L.P., counsel for the Company, shall have furnished to you their written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex II.
(d) Xxxxxxxx X. Xxxxx, General Counsel and Corporate Secretary of the Company, shall have furnished to you his written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex III.
(e) Xxxx Xxxxxxxxxx & Xxxxxxxxx LLP, special Indiana counsel for the Company, shall have furnished to you their written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex IV.
(f) Xxxxxx LLP, counsel for each of the Selling Stockholders, as indicated in Schedule IIA hereto, shall have furnished to you their written opinion with respect to each of the Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex V.
(g) Such local counsel as you shall reasonably require shall have furnished to you their written opinion with respect to each of the foreign Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex VI.
(h) On At the date Closing Date, you shall have received a certificate of the Prospectus at a time prior to Chief Executive Officer and Chief Financial Officer of the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, UHY, LLP shall have furnished to you a letter or lettersCompany, dated the respective dates of delivery thereofClosing Date, in form and substance satisfactory to you;
the effect that (i) On the condition set forth in subsection (a) of this Section 6 has been satisfied, (ii) as of the date hereof and as of the Prospectus at a time prior to Closing Date, the execution representations and warranties of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, Flackman Xxxxxxx & Xxxxxx, P.A. shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) Neither the Company nor set forth in Section 1 hereof are accurate, (iii) as of the Closing Date all agreements, conditions and obligations of the Company to be performed or complied with hereunder on or prior thereto have been duly performed or complied with, (iv) the Company and the Subsidiaries shall have not sustained since the date of the latest audited financial statements included in the Pricing Prospectus any material loss or interference with its business their respective businesses or properties from fire, explosionflood, flood hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or court any legal or governmental actionproceeding, (v) no stop order suspending the effectiveness of the Registration Statement or decreeany post-effective amendment thereof, other than or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus has been issued and, in each case, no proceedings therefor have been initiated or threatened by the Commission, (vi) there are no pro forma or as set forth or contemplated adjusted financial statements that are required to be included in the Registration Statement and the Pricing Prospectus Disclosure Package pursuant to the Rules and Regulations that have not been included or incorporated therein as so required and (iivii) since subsequent to the respective dates as of which information is given in the Pricing Prospectus (exclusive of any amendment or supplement thereto) there has not been any material adverse change or any development involving a prospective material adverse change, whether or not arising from transactions in the ordinary course of business, in or affecting (x) the business, condition (financial or otherwise), results of operations, stockholders' equity or properties of the Company and the Subsidiaries, individually or taken as a whole; (y) the long-term debt or capital stock of the Company or any of its Subsidiaries; or (z) the Offering or consummation of any of the other transactions contemplated by this Agreement, the Registration Statement, the Pricing Disclosure Package and the Prospectus.
(i) At the time this Agreement is executed and at the Closing Date, you shall have received a comfort letter, from Ernst & Young (Hellas) Certified Auditors-Accountants S.A., independent registered public accountants for the Company, dated, respectively, as of the date of this Agreement and as of the Closing Date, addressed to the Underwriters and in form and substance satisfactory to the Underwriters and Underwriters' Counsel.
(j) The Company shall have furnished to you at the time of this Agreement and on and as of the Closing Date or the Additional Closing Date, as the case may be, a certificate of the Chief Financial Officer of the Company confirming that the Chief Financial Officer is familiar with the accounting records and internal accounting practices, policies, procedures and controls of the Company and has had responsibility for accounting matters with respect to the Company, and attesting certain financial information contained in the Pricing Disclosure Package and the Prospectus.
(k) [Reserved].
(l) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Pricing Disclosure Package (exclusive of any supplement thereto), there shall not have been any change in the capital stock or long-term debt of the Company or the Subsidiaries any Subsidiary or any change, change or any development involving a prospective change, whether or not arising from transactions in the ordinary course of business, in the business, condition (financial or affecting the general affairsotherwise), management, financial positionresults of operations, stockholders’ ' equity or results of operations properties of the Company and the Subsidiaries, individually or taken as a whole, including but not limited to the occurrence of any fire, flood, storm, explosion, accident or other than as set forth calamity at any of the properties owned or contemplated in leased by the Pricing ProspectusCompany or any of its Subsidiaries, the effect of which, in any such case described in clause (i) or (ii)above, is is, in the judgment of the Representatives Underwriters, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery Offering on the terms and in the manner contemplated in the Pricing Prospectus;Disclosure Package (exclusive of any supplement).
(km) On At the Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements with respect to the Offering.
(n) No action shall have been taken and no statute, rule, regulation or after order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the Applicable TimeClosing Date, prevent the sale and delivery of the Securities; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Securities.
(o) The Company shall have furnished to the Underwriters and to Underwriters' Counsel such other certificates, opinions or other documents as they may have reasonably requested.
(p) The Firm Securities and Option Securities, if any, have been duly listed, subject to notice of issuance, on the NYSE.
(q) Since the date of this Agreement, there shall not have occurred a downgrading in the rating, if any, assigned to any preferred stock or other debt securities of the Company by any "nationally recognized statistical rating agency," as that term is defined by the Commission in Section 3(a)(62) of the Exchange Act, and no such organization shall have publicly announced that it has under surveillance or review its rating of such securities. If any of the following: (i) a suspension or material limitation in trading in securities generally on the NYSE; (ii) a suspension or material limitation in trading in the Company’s securities on the NYSE; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Texas State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) this Section 6 shall not have been fulfilled when and as required by this Agreement, or (v) in the judgment if any of the Representatives makes it impracticable certificates, opinions, written statements or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus;
(l) The Shares to be sold at such Time of Delivery shall have been duly admitted for trading and quotation on the NYSE;
(m) The Company shall have obtained and delivered letters furnished to the Underwriters executed copies or to Underwriters' Counsel pursuant to this Section 6 shall not be satisfactory in form and substance to the Underwriters and to Underwriters' Counsel, all obligations of a lock-up agreement from each of its directors and executive officersthe Underwriters hereunder may be cancelled by the Underwriters at, or at any time prior to, the Selling Stockholders Closing Date and each other stockholder identified on Schedule IV heretothe obligations of the Underwriters to purchase the Additional Securities may be cancelled by the Underwriters at, in or at any time prior to, the form attached as Annex I hereto;
(n) The Company Additional Closing Date. Notice of such cancellation shall have complied with the provisions of Section 5(c) hereof with respect be given to the furnishing of prospectuses on the New York Business Day next succeeding the date of this Agreement; and
(o) The Company and the Selling Stockholders in writing or by telephone. Any such telephone notice shall have furnished or caused to be furnished to you at such Time of Delivery certificates of officers of the Company and of the Selling Stockholders, respectively, satisfactory to you as to the accuracy of the representations and warranties of the Company and the Selling Stockholders, respectively, herein at and as of such Time of Delivery, as to the performance by the Company and the Selling Stockholders of all of their respective obligations hereunder to be performed at or prior to such Time of Delivery, and the Company shall have furnished or caused to be furnished certificates as to the matters set forth confirmed promptly thereafter in subsections (a) of this Section and as to such other matters as you may reasonably requestwriting.
(p) The Company shall have furnished or caused to be furnished to you at such Time of Delivery a certificate of the Executive Vice President, Chief Financial Officer and Treasurer to the effect that:
(i) He is familiar with the internal accounting records of the Company.
(ii) He has reviewed the “Recent Developments” section contained in both the Preliminary Prospectus and the Prospectus. The information presented in such Recent Developments section (A) has been prepared in good faith and based upon assumptions that he believes are reasonable and consistent with the operations of the Company and (B) is a fair estimate in all material respects of the Company’s total revenues and net income for the three months ended June 30, 2011 and has been derived from the Company’s accounting and/or financial records.
Appears in 1 contract
Conditions of Underwriters’ Obligations. The several obligations of the Underwriters hereunderto purchase and pay for the Units, as to the Shares to be delivered at each Time of Deliveryprovided herein, shall be subjectsubject to the accuracy, in their discretionas of the date hereof and as of the Closing Date (and, if applicable, the Option Closing Date), of the representations and warranties of the EVEP Parties contained herein, to the condition that all representations performance by the EVEP Parties of their covenants and warranties and other statements of the Company and of the Selling Stockholders herein are, at and as of such Time of Delivery, true and correct, the condition that the Company and the Selling Stockholders shall have performed all of its and their obligations hereunder theretofore to be performedhereunder, and to the following additional conditions:
(a) The Prospectus Registration Statement and all post-effective amendments thereto shall have been filed become effective not later than 5:30 p.m., New York time, on the date hereof, or, with the Commission pursuant to Rule 424(b) under consent of the Act within Underwriters, at a later date and time, not later than 1:00 p.m., New York time, on the applicable first business day following the date hereof, or at such later date and time period prescribed for such filing as may be approved by the rules and regulations under the Act and in accordance with Section 5(a) hereof; all material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433 under the ActUnderwriters; if the Company Partnership has elected to rely upon on Rule 462(b) under of the Act1933 Act Rules and Regulations, the Rule 462(b) Abbreviated Registration Statement shall have become effective by not later than the earlier of (i) 10:00 p.m., Washington, D.C. p.m. New York time, on the date hereof, or (ii) at such later date and time as may be approved by the Underwriters. All filings required by Rule 424 and Rule 430A of this Agreement; no the 1933 Act Rules and Regulations shall have been made. No stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Prospectus or any part thereof Permitted Free Writing Prospectus shall have been issued and no proceeding for that purpose shall have been initiated or, to the knowledge of the Partnership or any Underwriter, threatened or contemplated by the Commission; no stop order suspending SEC, and any request of the SEC for additional information (to be included in the Registration Statement or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission otherwise) shall have been complied with to your the reasonable satisfaction;satisfaction of the Underwriters.
(b) Xxxxx Xxxxx L.L.P.No Underwriter shall have advised the Partnership on or prior to the Closing Date (and, if applicable, the Option Closing Date), that the Registration Statement, any Preliminary Prospectus or Prospectus, any Permitted Free Writing Prospectus or any amendment or supplement thereto contains an untrue statement of fact which, in the opinion of the Underwriters (upon the advice of counsel) is material, or omits to state a fact which, in the opinion of the Underwriters (upon the advice of counsel) is material and is required to be stated therein or is necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) On the Closing Date (and, if applicable, the Option Closing Date), the Underwriters shall have received the opinion of Xxxxxx and Xxxxx, LLP, counsel for the UnderwritersPartnership, shall have furnished addressed to you such written opinion or opinionsthem and dated the Closing Date (and, dated such Time of Deliveryif applicable, the Option Closing Date), in form and substance reasonably satisfactory to you, with respect to such matters as you may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;
(c) Xxxxxx & Xxxxxx L.L.P., counsel for the Company, shall have furnished to you their written opinion, dated such Time of Delivery, in form and substance satisfactory to youUnderwriters, to the effect set forth on Annex IIExhibit A hereto.
(d) Xxxxxxxx X. On the Closing Date, the Underwriters shall have received the opinion of Vorys, Xxxxx, General Counsel Xxxxxxx and Corporate Secretary Xxxxx, LLP, opining as to the laws of Ohio, Waters, Warner & Xxxxxx, PLLC, opining as to the Companylaws of West Virginia and C. Xxxxxxx Xxxxx, shall have furnished opining as to you his written opinionthe laws of Louisiana, addressed to the Underwriters and dated such Time of Deliverythe Closing Date (and, if applicable, the Option Closing Date), in form and substance reasonably satisfactory to youthe Underwriters, to the effect set forth on Annex IIIExhibits X-0, X-0 and B-3 hereto.
(e) Xxxx Xxxxxxxxxx The Underwriters shall have received on the Closing Date (and, if applicable, the Option Closing Date), from Xxxxxx & Xxxxxxxxx LLPXxxxxx L.L.P., special Indiana counsel for to the CompanyUnderwriters, such opinion or opinions, dated the Closing Date (and, if applicable, the Option Closing Date) with respect to such matters as the Underwriters may reasonably require; and the EVEP Parties shall have furnished to you their written opinionsuch counsel such documents as they reasonably request for the purposes of enabling them to review or pass on the matters referred to in this Section 7 and in order to evidence the accuracy, dated such Time completeness and satisfaction of Deliverythe representations, warranties and conditions herein contained.
(f) At the time of execution of this Agreement, the Underwriters shall have received from Deloitte & Touche LLP a letter or letters, in form and substance reasonably satisfactory to youthe Underwriters, addressed to the effect set forth on Annex IVUnderwriters and dated the date hereof and covering the matters described in Exhibit C hereto including (i) confirming that they are independent public accountants within the meaning of the Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Registration Statement, the Prospectus, any Preliminary Prospectus and any Permitted Free Writing Prospectuses, as of a date not more than five days prior to the date hereof), the conclusions and findings of such firm with respect to the various financial information in the Registration Statement, the Prospectus, any Preliminary Prospectus and any Permitted Free Writing Prospectuses and other matters ordinarily covered by accountants' "comfort letters" to underwriters in connection with registered public offerings.
(fg) Xxxxxx LLPWith respect to the letter or letters of Deloitte & Touche LLP referred to in the preceding paragraph and delivered to the Underwriters concurrently with the execution of this Agreement (the "initial letters"), counsel for each of the Selling Stockholders, as indicated in Schedule IIA hereto, Partnership shall have furnished to you their written opinion with respect to each the Underwriters a letter (the "bring-down letter") of the Selling Stockholders, dated the First Time of Deliverysuch accountants, in form and substance reasonably satisfactory to youthe Underwriters, addressed to the effect Underwriters and dated the Closing Date (or if applicable, the Option Closing Date) (i) confirming that they are independent public accountants within the meaning of the Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Registration Statement, the Prospectus, any Preliminary Prospectus and any Permitted Free Writing Prospectuses, as of a date not more than five days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letters and (iii) confirming in all material respects the conclusions and findings set forth in Annex V.the initial letters.
(gh) Such local counsel as you shall reasonably require At the time of execution of this Agreement, the Underwriters shall have furnished to you their written opinion with respect to each of the foreign Selling Stockholdersreceived from Xxxxxx, dated the First Time of DeliveryXxxxxxxxx & Associates, Inc. a letter, in form and substance reasonably satisfactory to youthe Underwriters, addressed to the effect set forth Underwriters and dated the date hereof covering the matters described in Annex VI.Exhibit D.
(hi) On With respect to the date letter of Xxxxxx, Xxxxxxxxx & Associates, Inc. referred to in the Prospectus at a time prior preceding paragraph and delivered to the Underwriters concurrently with the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, UHY, LLP Partnership shall have furnished to you the Underwriters a letter or lettersof such reserve engineers, addressed to the Underwriters and dated each of the respective dates of delivery thereofClosing Date and the Option Closing Date, if any, confirming in form all material respects covering the matters in the letter referred to in the preceding paragraph.
(j) Except as set forth in the Registration Statement, the Prospectus and substance satisfactory to you;
the Disclosure Package, (i) On the date none of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, Flackman Xxxxxxx & Xxxxxx, P.A. shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) Neither the Company nor the Subsidiaries Partnership Entities shall have sustained since the date of the latest audited financial statements included in the Pricing Registration Statement and in the Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order order, investigation or decree, other than as set forth or contemplated in the Pricing Prospectus ; and (ii) since subsequent to the respective dates as of which such information is given in the Pricing Registration Statement and the Prospectus (or any amendment or supplement thereto), none of the Partnership Entities shall have incurred any liability or obligation, direct or contingent, or entered into any transactions, and there shall not have been any change in the capital stock capitalization or short-term or long-term debt of the Company or the Subsidiaries Partnership Entities or any change, or any development involving or which might reasonably be expected to involve a prospective changechange in the condition (financial or other), in net worth, partners' or affecting the general members' equity, business, affairs, management, financial positionprospects, stockholders’ equity or results of operations or cash flow of the Company and the Subsidiaries, other than as set forth or contemplated in the Pricing ProspectusPartnership Entities, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives Underwriters so material and or adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares Units being delivered at on such Time of Delivery Closing Date (and, if applicable, the Option Closing Date) on the terms and in the manner contemplated in the Pricing Prospectus;.
(k) On or after the Applicable Time, there There shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the NYSENASDAQ Global Market, or the establishing on such market by the SEC or by such market of minimum or maximum prices which are not in force and effect on the date hereof; (ii) a suspension or material limitation in trading in the Company’s Partnership's securities on the NYSE; NASDAQ Global Market or the establishing on such market by the SEC or by such market of minimum or maximum prices which are not in force and effect on the date hereof, (iii) a general moratorium on commercial banking activities declared by either Federal federal or New York or Texas State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United Statesapplicable state authorities; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financialwar, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) which in the judgment of the Representatives Underwriters makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered Units in the manner contemplated in the Prospectus; or (v) any calamity or crisis, change in national, international or world affairs, act of God, change in the international or domestic markets, or change in the existing financial, political or economic conditions in the United States or elsewhere, the effect of which on the financial markets of the United States is such as to make it in the judgment of the Underwriters impracticable or inadvisable to proceed with the public offering or the delivery of the Units in the manner contemplated in the Prospectus.
(l) The Underwriters shall have received certificates, dated the Closing Date (and, if applicable, the Option Closing Date) and signed by chief executive officer and the chief financial officer, in their capacities as such, (or persons holding similar positions, as applicable) of each of the EVEP Parties, stating that:
(i) the conditions set forth in Section 7(a) have been fully satisfied;
(ii) such EVEP Party has examined the Registration Statement, the Prospectus, the Disclosure Package and any amendment or supplement thereto, as well as each electronic roadshow used in connection with the offering, and (A) nothing has come to such EVEP Party's attention that would lead it to believe that, as of the Effective Date, the Registration Statement included any untrue statement of a material fact or omitted to state material fact required to be stated therein or necessary to make the statements therein not misleading, and as of its issue date and as of the Closing Date (and, if applicable, the Option Closing Date), the Prospectus, the Disclosure Package and any amendment or supplement thereto, as well as each electronic roadshow used in connection with the offering, as of their respective effective, issue or filing dates, included any untrue statement of a material fact or omitted to state material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (B) since the Effective Date, there has occurred no event required to be set forth in an amendment or supplement to the Registration Statement or the Prospectus which has not been so set forth;
(iii) all representations and warranties made herein by such EVEP Party are true and correct at such Time Closing Date, with the same effect as if made on and as of Delivery such Closing Date; and all agreements herein to be performed or complied with by such EVEP Party on or prior to such Closing Date have been duly performed and complied with by such EVEP Party;
(iv) no event contemplated by Section 7(j) has occurred; and
(v) covering such other matters as the Underwriters may reasonably request.
(m) The EVEP Parties shall not have failed, refused, or been unable, at or prior to the Closing Date (and, if applicable, the Option Closing Date) to have performed any agreement on their part to be performed or any of the conditions herein contained and required to be performed or satisfied by them at or prior to such Closing Date.
(n) The Partnership shall have furnished to the Underwriters at the Closing Date (and, if applicable, the Option Closing Date) such further information, opinions, certificates, letters and documents as the Underwriters may have reasonably requested.
(o) The NASDAQ Global Market shall have approved the Units for quotation, subject only to official notice of issuance.
(p) The Underwriters shall have received duly and validly executed letter agreements referred to in Section 6(a)(xiii) hereof.
(q) The Underwriters shall have received evidence satisfactory to them that each of the Transactions shall have occurred or will occur as of the Closing Date, in each case as described in the Prospectus without modification, change or waiver, except for such modifications, changes or waivers as have been specifically identified to the Underwriters and which, in the judgment of the Underwriters, do not make it impracticable or inadvisable to proceed with the offering and delivery of the Units on the Closing Date on the terms and in the manner contemplated in the Prospectus;
(l) The Shares to . All such opinions, certificates, letters and documents will be sold at such Time of Delivery shall have been duly admitted for trading in compliance with the provisions hereof only if they are reasonably satisfactory in form and quotation on the NYSE;
(m) The Company shall have obtained and delivered substance to the Underwriters executed and to Xxxxxx & Xxxxxx L.L.P., counsel for the several Underwriters. The Partnership will furnish the Underwriters with such signed and conformed copies of a lock-up agreement from each of its directors such opinions, certificates, letters and executive officers, the Selling Stockholders and each other stockholder identified on Schedule IV hereto, in the form attached documents as Annex I hereto;
(n) The Company shall have complied they may request. In accordance with the provisions of Section 5(c) hereof with respect to the furnishing of prospectuses on the New York Business Day next succeeding the date of 11, hereof, this Agreement; and
(o) The Company and the Selling Stockholders shall have furnished or caused to Agreement may be furnished to you at such Time of Delivery certificates of officers of the Company and of the Selling Stockholders, respectively, satisfactory to you as to the accuracy of the representations and warranties of the Company and the Selling Stockholders, respectively, herein at and as of such Time of Delivery, as to the performance terminated by the Company and the Selling Stockholders of all of their respective obligations hereunder to be performed Underwriters at any time at or prior to such Time of Delivery, and the Company shall have furnished or caused to be furnished certificates as Closing Date by notice to the matters set forth Partnership if any condition specified in subsections (a) of this Section and as to such other matters as you may reasonably request.
(p) The Company 7 shall not have furnished been satisfied on or caused to be furnished to you at such Time of Delivery a certificate of the Executive Vice President, Chief Financial Officer and Treasurer prior to the effect that:
(i) He is familiar with the internal accounting records of the Company.
(ii) He has reviewed the “Recent Developments” section contained in both the Preliminary Prospectus and the Prospectus. The information presented in such Recent Developments section (A) has been prepared in good faith and based upon assumptions that he believes are reasonable and consistent with the operations of the Company and (B) is a fair estimate in all material respects of the Company’s total revenues and net income for the three months ended June 30, 2011 and has been derived from the Company’s accounting and/or financial records.Closing Date
Appears in 1 contract
Conditions of Underwriters’ Obligations. The several obligations of the Underwriters hereunder, as to the Shares to be delivered at each Time of Delivery, shall be subject, in their discretion, to the condition that all representations and warranties and other statements of the Company and of the Selling Stockholders herein are, at and as of such Time of Delivery, true and correct, the condition that the Company and the Selling Stockholders shall have performed all of its and their obligations hereunder theretofore to be performed, and the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(a) hereof; all material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433 under the Act; if the Company has elected to rely upon Rule 462(b) under the Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m., Washington, D.C. time, on the date of this Agreement; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction;
(b) Xxxxx Xxxxx L.L.P., counsel for the Underwriters, shall have furnished to you such written opinion or opinions, dated such Time of Delivery, in form and substance reasonably satisfactory to you, with respect to such matters as you may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;
(c) Xxxxxx & Xxxxxx L.L.P., counsel for the Company, shall have furnished to you their written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex II.
(d) Xxxxxxxx X. Xxxxx, General Counsel and Corporate Secretary of the Company, shall have furnished to you his written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex III.
(e) Xxxx Xxxxxxxxxx & Xxxxxxxxx LLP, special Indiana counsel for the Company, shall have furnished to you their written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex IV.
(f) Xxxxxx LLP, counsel for each of the Selling Stockholders, as indicated in Schedule IIA hereto, shall have furnished to you their written opinion with respect to each of the Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex V.
(g) Such local counsel as you shall reasonably require shall have furnished to you their written opinion with respect to each of the foreign Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex VI.
(h) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, UHY, LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, Flackman Xxxxxxx & Xxxxxx, P.A. shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) Neither the Company nor the Subsidiaries shall have sustained since the date of the latest audited financial statements included in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, other than as set forth or contemplated in the Pricing Prospectus and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or the Subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and the Subsidiaries, other than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Pricing Prospectus;
(k) On or after the Applicable Time, there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the NYSE; (ii) a suspension or material limitation in trading in the Company’s securities on the NYSE; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Texas State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus;
(l) The Shares to be sold at such Time of Delivery shall have been duly admitted for trading and quotation on the NYSE;
(m) The Company shall have obtained and delivered to the Underwriters executed copies of a lock-up agreement from each of its directors and executive officers, the Selling Stockholders and each other stockholder identified on Schedule IV hereto, in the form attached as Annex I hereto;
(n) The Company shall have complied with the provisions of Section 5(c) hereof with respect to the furnishing of prospectuses on the New York Business Day next succeeding the date of this Agreement; and
(o) The Company and the Selling Stockholders shall have furnished or caused to be furnished to you at such Time of Delivery certificates of officers of the Company and of the Selling Stockholders, respectively, satisfactory to you as are subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholders, respectively, herein at Adviser on the date hereof and as of such Time of Delivery, as to on the Closing Date and the performance by the Company and the Selling Stockholders Adviser of all each of their respective its obligations hereunder to be performed at or prior to such Time of Delivery, and the Company shall have furnished or caused to be furnished certificates as to the matters set forth in subsections following additional conditions precedent:
(a) You shall have received on the Closing Date an opinion of Dechert LLP, outside counsel for the Company and the Adviser addressed to the Representatives, and dated the Closing Date, in a form to the reasonable satisfaction of the Representatives. The opinion of Dechert LLP described in this Section 6(a) shall be rendered to the Underwriters at the request of the Company and shall so state therein.
(b) You shall have received from PricewaterhouseCoopers LLP letters dated, respectively, the date of this Section Agreement and as the Closing Date, and addressed to such the Representatives (with reproduced copies for the Underwriters) in the forms heretofore approved by the Representatives containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the consolidated financial statements and certain financial information of the Company contained in, or incorporated by reference in, the Registration Statement, the Pricing Prospectus and the Prospectus.
(c) You shall have received on the Closing Date, the opinion of Ropes & Gxxx LLP, counsel for the Underwriters, dated the Closing Date, with respect the sale of the Securities and other related matters as you the Underwriters may reasonably request.
(pd) Between the Applicable Time and the Closing Date, (i) no stop order with respect to the effectiveness of the Registration Statement shall have been issued under the Act or, to the Company’s knowledge, proceedings initiated under Section 8(d) or 8(e) of the Act; (ii) the Registration Statement shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and (iii) the Prospectus shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they are made, not misleading.
(e) Between the Applicable Time and the Closing Date, no material adverse change or any development involving a prospective material adverse change in the business, properties, management, financial condition or results of operations of the Company, the Subsidiaries or the Adviser, taken as a whole shall occur or become known.
(i) The Company will, on the Closing Date, deliver to you a certificate of its Chief Executive Officer or Co-President and its Chief Financial Officer or Chief Accounting Officer in substantially the form attached as Exhibit A-1 hereto and (ii) the Adviser will, on the Closing Date, deliver to you a certificate of its Chief Executive Officer or the President and its Chief Financial Officer, Secretary or any other executive officer of the Adviser in substantially the form attached as Exhibit A-2 hereto.
(g) [Reserved]
(h) The Company and the Trustee shall have executed and delivered the Second Supplemental Indenture and the Securities.
(i) Between the Applicable Time and the Closing Date, there shall not have been any decrease in the rating of any debt of the Company or any Subsidiary by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act), or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change, and no such organization shall have publicly announced it has under surveillance or review any such rating.
(j) The Company shall have furnished or caused to be furnished to you at such Time other documents and certificates as you may reasonably request and as are customary for a transaction of Delivery a certificate of the Executive Vice President, Chief Financial Officer and Treasurer to the effect that:
(i) He is familiar with the internal accounting records of the Companythis type.
(ii) He has reviewed the “Recent Developments” section contained in both the Preliminary Prospectus and the Prospectus. The information presented in such Recent Developments section (A) has been prepared in good faith and based upon assumptions that he believes are reasonable and consistent with the operations of the Company and (B) is a fair estimate in all material respects of the Company’s total revenues and net income for the three months ended June 30, 2011 and has been derived from the Company’s accounting and/or financial records.
Appears in 1 contract
Sources: Underwriting Agreement (Bain Capital Specialty Finance, Inc.)
Conditions of Underwriters’ Obligations. The Company, the Mid-Tier Company, the MHC, the Bank and the Representative agree that the issuance and the sale of Shares and the issuance and sale of the shares of Common Stock in the Subscription Offering and the Community Offering and the issuance of the Exchange Shares and all obligations of the Underwriters hereunder, as hereunder are subject to the Shares to be delivered at each accuracy of the representations and warranties of the Company, the Mid-Tier Company, the MHC and the Bank herein contained as of the date hereof and the Time of Delivery, shall be subjectto the accuracy of the statements of officers and directors of the Company, in their discretionthe Mid-Tier Company, the MHC and the Bank made pursuant to the provisions hereof, to the condition that all representations and warranties and other statements of performance by the Company and of the Selling Stockholders herein are, at and as of such Time of Delivery, true and correctCompany, the condition that Mid-Tier Company, the Company MHC and the Selling Stockholders shall have performed all Bank of its and their obligations hereunder theretofore to be performedhereunder, and to the following additional further conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Securities Act Regulations and in accordance with Section 5(a3(a) hereof; all material required to be filed by the Company pursuant to Rule 433(d) under the Act hereof (or a post-effective amendment shall have been filed and declared effective in accordance with the Commission within the applicable time period prescribed for such filing by requirements of Rule 433 under the Act; if the Company has elected to rely upon Rule 462(b) under the Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m., Washington, D.C. time, on the date of this Agreement430A); no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission or the FRB shall have been complied with to your the Representative’s reasonable satisfaction;; FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements; and no order suspending the sale of the Shares in any jurisdiction shall have been issued.
(b) Xxxxx Xxxxx L.L.P., counsel for the Underwriters, shall have furnished to you such written opinion or opinions, dated such At Time of Delivery, in form and substance reasonably satisfactory to you, with respect to such matters as you may reasonably request, and such counsel the Representative shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;received:
(c1) Xxxxxx & Xxxxxx L.L.P.The favorable opinion, dated as of Time of Delivery, of Xxxx Xxxxxx, PC, counsel for the Company, shall have furnished to you their written opinionthe Mid-Tier Company, dated such Time of Deliverythe MHC and the Bank, in form and substance satisfactory to youcounsel for the Representative as attached hereto as Exhibit A.
(2) The favorable opinion, dated as of Time of Delivery, of Xxxxx Xxxxxx LLP, counsel for the Representative, as to such matters as the Representative shall reasonably require.
(3) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, Xxxx Xxxxxx, PC and Xxxxx Xxxxxx LLP shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time it initially became effective (and at the time any post-effective amendment was declared effective), contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective, as of the date of the Prospectus or at the Time of Delivery, or (if applicable) that the General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, Xxxx Xxxxxx, PC and Xxxxx Xxxxxx LLP may rely as to matters of fact on certificates of officers and directors of the Company, the Mid-Tier Company, the MHC and the Bank and certificates of public officials. Xxxxx Xxxxxx LLP may also rely on the opinion of Xxxx Xxxxxx, PC.
(c) At Time of Delivery referred to in Section 2 hereof, the Company, the Mid-Tier Company, the MHC and the Bank shall have completed in all material respects the conditions precedent to the effect set forth on Annex IIConversion in accordance with the Plan, the applicable FRB Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company, the Mid-Tier Company, the MHC or the Bank by the FRB, or any other regulatory authority other than those which the FRB permits to be completed after the Conversion.
(d) Xxxxxxxx X. Xxxxx, General Counsel and Corporate Secretary of the Company, shall have furnished to you his written opinion, dated such At Time of Delivery, in form and substance satisfactory to youthere shall not have been, to the effect set forth on Annex III.
(e) Xxxx Xxxxxxxxxx & Xxxxxxxxx LLP, special Indiana counsel for the Company, shall have furnished to you their written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex IV.
(f) Xxxxxx LLP, counsel for each of the Selling Stockholders, as indicated in Schedule IIA hereto, shall have furnished to you their written opinion with respect to each of the Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex V.
(g) Such local counsel as you shall reasonably require shall have furnished to you their written opinion with respect to each of the foreign Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex VI.
(h) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, UHY, LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, Flackman Xxxxxxx & Xxxxxx, P.A. shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) Neither the Company nor the Subsidiaries shall have sustained since the date of the latest audited financial statements included in the Pricing Prospectus any loss hereof or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, other than as set forth or contemplated in the Pricing Prospectus and (ii) since the respective dates as of which information is given in the Pricing Prospectus Registration Statement and the Prospectus, any Material Adverse Effect, whether or not arising in the ordinary course of business and the Representative shall have received a certificate of the Chief Executive Officer of the Company, the Mid-Tier Company, the MHC and the Bank and the Chief Financial Officer of the Company, the Mid-Tier Company, the MHC and the Bank, dated as of Time of Delivery, to the effect that (i) there has been no such Material Adverse Effect, (ii) there shall not have been no material transaction entered into by the Company, the Mid-Tier Company, the MHC or the Bank from the latest date as of which the financial condition of the Company, the Mid-Tier Company, the MHC or the Bank, as set forth in the Registration Statement and the Prospectus other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice (iii) neither the Company, the Mid-Tier Company, the MHC nor the Bank shall have received from the FRB, the OCC or the FDIC any order or direction (oral or written) to make any material change in the capital stock method of conducting its business with which it has not complied (which order or long-term debt direction, if any, shall have been disclosed in writing to the Representative) or which materially and adversely would affect the business, financial condition, results of operations or prospects of the Company Company, the Mid-Tier Company, the MHC or the Subsidiaries Bank, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Time of Delivery, (v) each of the Company, the Mid-Tier Company, the MHC and the Bank have complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to Time of Delivery, including all agreements and all conditions set forth in the Agency Agreement, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Commission and (vii) no order suspending the FRB’s approval of the Conversion Application, the Holding Company Application or the transactions contemplated thereby, has been issued and no proceedings for that purpose have been initiated or threatened by the FRB and no person has sought to obtain regulatory or judicial review of the action of the FRB in approving the Plan in accordance with the FRB Regulations nor has any changeperson sought to obtain regulatory or judicial review of the action of the FRB in approving the Conversion Application or the Holding Company Application.
(e) At the Time of Delivery, the Representative shall have received a certificate of the Chief Executive Officer of the Mid-Tier Company, the Company, the MHC and the Bank and the Chief Financial Officer of the Mid-Tier Company, the Company, the MHC and the Bank, dated as of Time of Delivery, to the effect that (i) they have reviewed the contents of the Registration Statement and the Prospectus; (ii) based on each of their knowledge, the Registration Statement and the Prospectus do not contain any untrue statement of a material fact or any development involving omit to state a prospective changematerial fact necessary in order to make the statements made therein, in or affecting light of the general affairscircumstances under which such statements were made, managementnot misleading; and (iii) based on each of their knowledge, the financial position, stockholders’ equity or statements and other financial information included in the Registration Statement and the Prospectus fairly present the financial condition and results of operations of the Mid-Tier Company and the SubsidiariesBank as of and for the dates and periods covered by the Registration Statement and the Prospectus.
(f) As of the date hereof, other than the Representative shall have received from BDO USA, LLP and Xxxxx Xxxxx Xxxxxxx Xxxxxx, LLP letters dated such date, in form and substance satisfactory to the Representative, to the effect that: (i) they are independent public accountants with respect to the Company, the Mid-Tier Company, the MHC and the Bank within the meaning of the Code of Ethics of the AICPA, the Securities Act and the Securities Act Regulations and the FRB Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the Xxxxxxxx-Xxxxx Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement, including any post-effective amendment thereto, and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Representative and BDO USA, LLP and Xxxxx Xxxxx Xxxxxxx Xxxxxx, LLP set forth or contemplated in detail in such letters, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and supporting schedules of the Mid-Tier Company included in the Pricing Registration Statement do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act, the Securities Act Regulations and the FRB Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data” [or under “Recent Developments”] in the Prospectus and the General Disclosure Package do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited consolidated financial statements included in the Registration Statement, (C) at a specified date not more than five (5) business days prior to the date of this Agreement, there has been any increase in the consolidated long term or short term debt of the Mid-Tier Company or any decrease in consolidated total assets, the allowance for loan losses, total deposits or total stockholders’ equity of the Mid-Tier Company, in each case as compared with the amounts shown in the December 31, 2014 consolidated statements of financial condition included in the Registration Statement or, (D) during the period from December, 31, 2014 to a specified date not more than five (5) business days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier Company, except in all instances for increases or decreases which the Registration Statement, the Prospectus and the General Disclosure Package disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information that are included in the Registration Statement, the Prospectus and the General Disclosure Package and that are specified by the Representative, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Company, the Mid-Tier Company, the MHC and the Bank identified in such letter.
(g) The “lock-up” agreements, each substantially in the form of Exhibit B hereto, between the Representative and the persons set forth on Exhibit C hereto, relating to sales and certain other dispositions of shares of Common Stock, Mid-Tier Company Common Stock or certain other securities, shall have been delivered to Sandler X’Xxxxx on or before the date of the Agency Agreement and shall be in full force and effect on the Time of Delivery.
(h) At Time of Delivery, the Representative shall have received from BDO USA, LLP and Xxxxx Xxxxx Xxxxxxx Xxxxxx, LLP letters, dated as of Time of Delivery, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to Time of Delivery.
(i) At Time of Delivery, all notices required to be filed to permit the Securities, the Foundation Shares and the Exchange Shares to be quoted on the Nasdaq Global Select Market upon notice of issuance shall have been timely filed.
(j) At Time of Delivery, the Representative shall have received a letter from the Appraiser, dated as of the Time of Delivery, confirming its appraisal.
(k) At Time of Delivery, counsel for the Underwriters shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities, including the Shares, the Foundation Shares and the Exchange Shares, as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities, including the Shares, the Foundation Shares and the Exchange Shares, as herein contemplated shall be satisfactory in form and substance to the Representative and counsel for the Underwriters.
(l) At any time prior to Time of Delivery, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives Representative, are so material and adverse as to make it impracticable to market the Shares or inadvisable to proceed with enforce contracts, including subscriptions or orders, for the public offering sale of the Securities, and (ii) trading generally on any of the NYSE MKT, the New York Stock Exchange or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Pricing Prospectus;
(k) On or after the Applicable Time, there Nasdaq shall not have occurred any been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either of said exchanges or by order of the following: (i) Commission or any other governmental authority, and a suspension or material limitation in trading in securities generally on the NYSE; (ii) a suspension or material limitation in trading in the Company’s securities on the NYSE; (iii) a general banking moratorium on commercial banking activities shall not have been declared by either Federal Federal, Maryland, New Jersey or New York or Texas State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus;
(l) The Shares to be sold at such Time of Delivery shall have been duly admitted for trading and quotation on the NYSE;
(m) The Company shall have obtained and delivered to the Underwriters executed copies of a lock-up agreement from each of its directors and executive officers, the Selling Stockholders and each other stockholder identified on Schedule IV hereto, in the form attached as Annex I hereto;
(n) The Company shall have complied with the provisions of Section 5(c) hereof with respect to the furnishing of prospectuses on the New York Business Day next succeeding the date of this Agreement; and
(o) The Company and the Selling Stockholders shall have furnished or caused to be furnished to you at such Time of Delivery certificates of officers of the Company and of the Selling Stockholders, respectively, satisfactory to you as to the accuracy of the representations and warranties of the Company and the Selling Stockholders, respectively, herein at and as of such Time of Delivery, as to the performance by the Company and the Selling Stockholders of all of their respective obligations hereunder to be performed at or prior to such Time of Delivery, and the Company shall have furnished or caused to be furnished certificates as to the matters set forth in subsections (a) of this Section and as to such other matters as you may reasonably requestauthorities.
(p) The Company shall have furnished or caused to be furnished to you at such Time of Delivery a certificate of the Executive Vice President, Chief Financial Officer and Treasurer to the effect that:
(i) He is familiar with the internal accounting records of the Company.
(ii) He has reviewed the “Recent Developments” section contained in both the Preliminary Prospectus and the Prospectus. The information presented in such Recent Developments section (A) has been prepared in good faith and based upon assumptions that he believes are reasonable and consistent with the operations of the Company and (B) is a fair estimate in all material respects of the Company’s total revenues and net income for the three months ended June 30, 2011 and has been derived from the Company’s accounting and/or financial records.
Appears in 1 contract
Conditions of Underwriters’ Obligations. The obligations of the Underwriters hereunder, as hereunder are subject to the Shares accuracy of the representations and warranties on the part of the Company herein and the accuracy of the statements of the Company’s officers made in any certificate furnished pursuant to be delivered at each Time of Delivery, shall be subject, in their discretionthe provisions hereof, to the condition that all representations performance and warranties and other statements of observance by the Company of all covenants and of the Selling Stockholders agreements herein are, at and as of such Time of Delivery, true and correct, the condition that the Company and the Selling Stockholders shall have performed all of contained on its and their obligations hereunder theretofore part to be performed, performed and observed and to the following additional conditionsconditions precedent:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(a) hereof; all material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433 under the Act; if the Company has elected to rely upon Rule 462(b) under the Act, the Rule 462(b) Registration Statement and any post-effective amendments thereto shall have become effective by 10:00 p.m.under the 1933 Act and at the Closing Time, Washington, D.C. time, on the date of this Agreement; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding proceedings for that purpose shall have been initiated be instituted or to the knowledge of the Company or the Underwriters, threatened or contemplated by the Commission; no stop order suspending the sale of the Notes in any jurisdiction designated by the Underwriters pursuant to Section 4(f) shall have been issued and no proceedings for that purpose shall have been instituted, or preventing to the use knowledge of the Company or the Underwriters, threatened or shall be contemplated; any request of the Commission for additional information (to be included in the Registration Statement, the General Disclosure Package, any preliminary prospectus or the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission otherwise) shall have been complied with to your the reasonable satisfaction;satisfaction of counsel to the Underwriters. The Final Term Sheet and the Prospectus referred to in Section 4(g) of this Agreement shall have been transmitted to the Commission for filing pursuant to Rule 433 and Rule 424(b) (without reliance on Rule 424(b)(8)), respectively, of the 1933 Act Regulations within the prescribed time period, and prior to Closing Time the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, and all requests of the Representatives for additional information shall have been complied with to the reasonable satisfaction of the Representatives.
(b) Xxxxx Xxxxx L.L.P., counsel for the Underwriters, shall have furnished to you such written opinion or opinions, dated such Time of Delivery, in form and substance reasonably satisfactory to you, with respect to such matters as you may reasonably request, and such counsel The Underwriters shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;
(c) Xxxxxx & Xxxxxx L.L.P.an opinion from Xxxxxxxx X. Xxxxx, counsel for Esq., Assistant General Counsel of the Company, shall have furnished to you their written opinion, dated such as of the Closing Time of Delivery, and in form and substance satisfactory to you, to the effect set forth on Annex II.
(d) Xxxxxxxx X. Xxxxx, General Counsel and Corporate Secretary of the Company, shall have furnished to you his written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex III.
(e) Xxxx Xxxxxxxxxx & Xxxxxxxxx LLP, special Indiana counsel for the Company, shall have furnished to you their written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex IV.
(f) Xxxxxx LLP, counsel for each of the Selling Stockholders, as indicated in Schedule IIA hereto, shall have furnished to you their written opinion with respect to each of the Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to youUnderwriters, to the effect set forth in Annex V.
(g) Such local Exhibit A hereto and an opinion from Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, special counsel to the Company, dated as you shall reasonably require shall have furnished to you their written opinion with respect to each of the foreign Selling Stockholders, dated the First Closing Time of Delivery, and in form and substance satisfactory to youcounsel for the Underwriters, to the effect set forth in Annex VIExhibit B hereto.
(hc) On The Underwriters shall have received an opinion from Sidley Austin LLP, counsel to the date Underwriters, dated as of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement Closing Time and also at each Time of Delivery, UHY, LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, Flackman Xxxxxxx & Xxxxxx, P.A. shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) Neither the Company nor the Subsidiaries shall have sustained since the date of the latest audited financial statements included in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, other than as set forth or contemplated in the Pricing Prospectus and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or the Subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and the Subsidiaries, other than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Pricing Prospectus;
(k) On or after the Applicable Time, there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the NYSE; (ii) a suspension or material limitation in trading in the Company’s securities on the NYSE; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Texas State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus;
(l) The Shares to be sold at such Time of Delivery shall have been duly admitted for trading and quotation on the NYSE;
(m) The Company shall have obtained and delivered to the Underwriters executed copies of a lock-up agreement from each of its directors and executive officers, the Selling Stockholders and each other stockholder identified on Schedule IV hereto, in the form attached as Annex I hereto;
(n) The Company shall have complied with the provisions of Section 5(c) hereof with respect to the furnishing of prospectuses on the New York Business Day next succeeding the date of this Agreement; and
(o) The Company and the Selling Stockholders shall have furnished or caused to be furnished to you at such Time of Delivery certificates of officers of the Company and of the Selling Stockholders, respectively, satisfactory to you as to the accuracy of the representations and warranties of the Company and the Selling Stockholders, respectively, herein at and as of such Time of Delivery, as to the performance by the Company and the Selling Stockholders of all of their respective obligations hereunder to be performed at or prior to such Time of Delivery, and the Company shall have furnished or caused to be furnished certificates as to the matters set forth in subsections (a) of this Section and as to such other matters as you may reasonably requestRepresentatives.
(p) The Company shall have furnished or caused to be furnished to you at such Time of Delivery a certificate of the Executive Vice President, Chief Financial Officer and Treasurer to the effect that:
(i) He is familiar with the internal accounting records of the Company.
(ii) He has reviewed the “Recent Developments” section contained in both the Preliminary Prospectus and the Prospectus. The information presented in such Recent Developments section (A) has been prepared in good faith and based upon assumptions that he believes are reasonable and consistent with the operations of the Company and (B) is a fair estimate in all material respects of the Company’s total revenues and net income for the three months ended June 30, 2011 and has been derived from the Company’s accounting and/or financial records.
Appears in 1 contract
Sources: Underwriting Agreement (Occidental Petroleum Corp /De/)
Conditions of Underwriters’ Obligations. The several obligations of the Underwriters hereunderto purchase and pay for the Firm Shares and the Additional Shares, as to the Shares to be delivered at each Time of Deliveryprovided herein, shall be subjectsubject to the accuracy of the representations and warranties of the Company herein contained, in their discretionas of the date hereof and as of the Closing Date (for purposes of this Section 7, "Closing Date" shall refer to the Closing Date for the Firm Shares and any Additional Closing Date, if different, for the Additional Shares), to the condition that all representations and warranties and other statements of performance by the Company and of the Selling Stockholders herein are, at and as of such Time of Delivery, true and correct, the condition that the Company and the Selling Stockholders shall have performed all of its and their obligations hereunder theretofore to be performedhereunder, and to each of the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in a timely fashion in accordance with Section 5(a4(a) hereof; all material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433 under the Act; if the Company has elected to rely upon Rule 462(b) under the Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m., Washington, D.C. time, on the date of this Agreement; no stop order suspending the effectiveness of the Registration Statement or any part thereof post-effective amendment thereto, and no stop order suspending or preventing the use of any Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus, shall have been issued by the Commission and no proceeding for that purpose proceedings therefor shall have been initiated or threatened by the Commission; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction;; if the Company has elected to rely on Rule 462(b) under the Securities Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m. (Washington, D.C. time) on the date of this Agreement; and all necessary regulatory or stock exchange approvals shall have been received.
(b) Xxxxx Xxxxx L.L.P., counsel for At the Underwriters, shall have furnished to Closing Date you such written opinion or opinions, dated such Time of Delivery, in form and substance reasonably satisfactory to you, with respect to such matters as you may reasonably request, and such counsel shall have received such papers the written opinion of Xxxxx Xxxxx, Cohn, Ferris, Glovsky and information as they may reasonably request to enable them to pass upon such matters;
(c) Xxxxxx & Xxxxxx L.L.P.Popeo, P.C., counsel for the Company, shall have furnished to you their written opinion, dated such Time of Delivery, in form the Closing Date and substance satisfactory to you, addressed to the effect set forth on Annex II.
(d) Xxxxxxxx X. Xxxxx, General Counsel and Corporate Secretary of the Company, shall have furnished to you his written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex III.
(e) Xxxx Xxxxxxxxxx & Xxxxxxxxx LLP, special Indiana counsel for the Company, shall have furnished to you their written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex IV.
(f) Xxxxxx LLP, counsel for each of the Selling Stockholders, as indicated in Schedule IIA hereto, shall have furnished to you their written opinion with respect to each of the Selling Stockholders, dated the First Time of DeliveryUnderwriters, in form and substance satisfactory to you, to the effect set forth in Annex V.I hereto.
(gc) Such local counsel as At the Closing Date you shall reasonably require shall have furnished to you their received the written opinion with respect to each of ______________, special intellectual property counsel for the foreign Selling StockholdersCompany, dated the First Time of DeliveryClosing Date and addressed to the Underwriters, in form and substance satisfactory to you, to the effect set forth in Annex VI[ __ ] hereto.
(hd) On At the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, UHY, LLP Closing Date you shall have furnished to you a letter or lettersreceived the written opinion of ______________, special intellectual property counsel for the Company, dated the respective dates of delivery thereofClosing Date and addressed to the Underwriters, in form and substance satisfactory to you;, to the effect set forth in Annex [ __ ] hereto.
(ie) On At the date of the Prospectus at a time prior to the execution of this AgreementClosing Date, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, Flackman Xxxxxxx & Xxxxxx, P.A. you shall have furnished to you a letter or lettersreceived the written opinion of Underwriters' Counsel, dated the respective dates of delivery thereofClosing Date and addressed to the Underwriters, in form and substance satisfactory to you;the Lead Managers, with respect to the issuance and sale of the Shares, the Registration Statement, the Pricing Disclosure Package, the Prospectus and such other matters as you may require, and the Company shall have furnished to Underwriters' Counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(f) At the Closing Date you shall have received a certificate of the Chief Executive Officer and Chief Financial Officer of the Company on behalf of the Company, dated the Closing Date, in form and substance reasonably satisfactory to the Lead Managers, as to (i) the accuracy of the representations and warranties of the Company set forth in Section 1 hereof as of the date hereof and as of the Closing Date, as to the performance by the Company of all of its obligations hereunder to be performed at or prior to the Closing Date, as to the matters set forth in subsections (a), (f) and (h) of this Section 7, and as to such other matters as the Lead Managers may reasonably request; and (ii) that they have carefully examined the Registration Statement, the Prospectus and the Pricing Disclosure Package, and, in their opinion, (A) (1) the Registration Statement, as of its effective date, (2) the Prospectus, as of its date and on the applicable Closing Date, or (3) the Pricing Disclosure Package, as of the Applicable Time, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration Statement, in the light of the circumstances under which they were made) not misleading[, except, in the case of the Pricing Disclosure Package, that the price of the Common Stock and disclosures directly relating thereto are included on the cover page of the Prospectus,] and (B) since the Effective Date, no event has occurred that should have been set forth in a supplement or amendment to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus that has not been so set forth.
(g) At the time this Agreement is executed and at the Closing Date, you shall have received a comfort letter, from KPMG, LLP, independent public accountants for the Company, dated, respectively, as of the date of this Agreement and as of the Closing Date, addressed to the Underwriters and in form and substance satisfactory to the Underwriters and Underwriters' Counsel.
(i) Neither the Company nor the Subsidiaries any Subsidiary shall have sustained sustained, since the date of the latest audited financial statements included in the Pricing Prospectus Prospectus, any material loss or interference with its business or properties from fire, explosion, flood flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or court any legal or governmental action, order or decreeproceeding, other than as set forth or contemplated in the Pricing Prospectus Disclosure Package (exclusive of any supplement thereto); and (ii) since subsequent to the respective dates as of which information is given in the Registration Statement (exclusive of any amendment thereto subsequent to the date hereof) and the Pricing Disclosure Package and the Prospectus (exclusive of any supplement thereto), there shall not have been any change in the capital stock or long-term or short-term debt of the Company or any Subsidiary (excluding the Subsidiaries grant and exercise of options under, or the issuance and sale of shares pursuant to, equity compensation plans in effect on the date hereof or as may become effective on or before the Closing Date, each as described in the Registration Statement, the Pricing Disclosure Package) or any change, change or any development involving a prospective change, whether or not arising from transactions in or affecting the general affairsordinary course of business, in the business, management, condition (financial positionor otherwise), results of operations, stockholders’ equity ' equity, properties or results of operations prospects of the Company and the Subsidiaries, other than taken as set forth or contemplated in the Pricing Prospectusa whole, the effect of which, in any such case described in clause (i) or (ii)above, is is, in the judgment of the Representatives Lead Managers, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery Offering on the terms and in the manner contemplated in the Pricing Prospectus;Disclosure Package and the Prospectus (exclusive of any such supplement).
(k) On or after the Applicable Time, there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the NYSE; (ii) a suspension or material limitation in trading in the Company’s securities on the NYSE; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Texas State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus;
(l) The Shares to be sold at such Time of Delivery You shall have been received a duly admitted for trading and quotation on the NYSE;
(m) The Company shall have obtained and delivered to the Underwriters executed copies of a lock-up agreement from each person who is a director or officer of its directors and executive officers, the Selling Stockholders Company and each shareholder and other stockholder identified person or entity listed on Schedule IV II hereto, in each case substantially in the form attached hereto as Annex I hereto;II.
(nj) The Company At the Closing Date, the Shares shall have complied with been approved for listing on the provisions of Section 5(cNASDAQ.
(k) hereof At the Closing Date, the NASD shall have confirmed that it has not raised any objection with respect to the furnishing of prospectuses on the New York Business Day next succeeding the date of this Agreement; and
(o) The Company fairness and the Selling Stockholders shall have furnished or caused to be furnished to you at such Time of Delivery certificates of officers reasonableness of the Company underwriting terms and of the Selling Stockholders, respectively, satisfactory to you as to the accuracy of the representations and warranties of the Company and the Selling Stockholders, respectively, herein at and as of such Time of Delivery, as to the performance by the Company and the Selling Stockholders of all of their respective obligations hereunder to be performed at or prior to such Time of Delivery, and the Company shall have furnished or caused to be furnished certificates as to the matters set forth in subsections (a) of this Section and as to such other matters as you may reasonably request.
(p) The Company shall have furnished or caused to be furnished to you at such Time of Delivery a certificate of the Executive Vice President, Chief Financial Officer and Treasurer to the effect that:
(i) He is familiar with the internal accounting records of the Company.
(ii) He has reviewed the “Recent Developments” section contained in both the Preliminary Prospectus and the Prospectus. The information presented in such Recent Developments section (A) has been prepared in good faith and based upon assumptions that he believes are reasonable and consistent with the operations of the Company and (B) is a fair estimate in all material respects of the Company’s total revenues and net income arrangements for the three months ended June 30, 2011 and has been derived from the Company’s accounting and/or financial recordsOffering.
Appears in 1 contract
Sources: Underwriting Agreement (Synta Pharmaceuticals Corp)
Conditions of Underwriters’ Obligations. The obligations of the several Underwriters hereunderto purchase and pay for the Firm Shares and the Additional Shares, as to the Shares to be delivered at each Time of Deliveryprovided herein, shall be subject, in their discretion, to the condition that all representations and warranties and other statements of the Company and of the Selling Stockholders herein are, at and as of such Time of Delivery, true and correct, the condition that the Company and the Selling Stockholders shall have performed all of its and their obligations hereunder theretofore to be performed, and the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(a) hereof; all material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433 under the Act; if the Company has elected to rely upon Rule 462(b) under the Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m., Washington, D.C. time, on the date of this Agreement; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction;
(b) Xxxxx Xxxxx L.L.P., counsel for the Underwriters, shall have furnished to you such written opinion or opinions, dated such Time of Delivery, in form and substance reasonably satisfactory to you, with respect to such matters as you may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;
(c) Xxxxxx & Xxxxxx L.L.P., counsel for the Company, shall have furnished to you their written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex II.
(d) Xxxxxxxx X. Xxxxx, General Counsel and Corporate Secretary of the Company, shall have furnished to you his written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex III.
(e) Xxxx Xxxxxxxxxx & Xxxxxxxxx LLP, special Indiana counsel for the Company, shall have furnished to you their written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex IV.
(f) Xxxxxx LLP, counsel for each of the Selling Stockholders, as indicated in Schedule IIA hereto, shall have furnished to you their written opinion with respect to each of the Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex V.
(g) Such local counsel as you shall reasonably require shall have furnished to you their written opinion with respect to each of the foreign Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex VI.
(h) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, UHY, LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, Flackman Xxxxxxx & Xxxxxx, P.A. shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) Neither the Company nor the Subsidiaries shall have sustained since the date of the latest audited financial statements included in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, other than as set forth or contemplated in the Pricing Prospectus and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or the Subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and the Subsidiaries, other than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Pricing Prospectus;
(k) On or after the Applicable Time, there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the NYSE; (ii) a suspension or material limitation in trading in the Company’s securities on the NYSE; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Texas State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus;
(l) The Shares to be sold at such Time of Delivery shall have been duly admitted for trading and quotation on the NYSE;
(m) The Company shall have obtained and delivered to the Underwriters executed copies of a lock-up agreement from each of its directors and executive officers, the Selling Stockholders and each other stockholder identified on Schedule IV hereto, in the form attached as Annex I hereto;
(n) The Company shall have complied with the provisions of Section 5(c) hereof with respect to the furnishing of prospectuses on the New York Business Day next succeeding the date of this Agreement; and
(o) The Company and the Selling Stockholders shall have furnished or caused to be furnished to you at such Time of Delivery certificates of officers of the Company and of the Selling Stockholders, respectively, satisfactory to you as subject to the accuracy of the representations and warranties of the Company and the Selling StockholdersShareholders herein contained, respectively, herein at as of the date hereof and as of such Time the Closing Date (for purposes of Deliverythis Section 6, as "Closing Date" shall refer to the Closing Date for the Firm Shares and any Additional Closing Date, if different, for the Additional Shares), to the absence from any certificates, opinions, written statements or letters furnished to you or to Gibsxx, Xxnn & Xrutxxxx ("Xnderwriters' Counsel") pursuant to this Section 6 of any material misstatement or omission, to the performance by the Company and the Selling Stockholders of all Shareholders of their respective obligations hereunder hereunder, and to be performed the following additional conditions:
(a) The Registration Statement shall have become effective not later than 5:30 P.M., New York time, on the date of this Agreement, or at such later time and date as shall have been consented to in writing by you; if the Company shall have elected to rely upon Rule 430A of the Regulations, the Prospectus or any Term Sheet that constitutes a part thereof shall have been filed with the Commission in a timely fashion in accordance with Section 4.A(a) hereof; and, at or prior to such Time of Deliverythe Closing Date, and Additional Closing Date, as the Company case may be, no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereof shall have furnished been issued and no proceedings therefor shall have been initiated or caused to be furnished certificates as to threatened by the matters set forth in subsections (a) of this Section and as to such other matters as you may reasonably requestCommission.
(pb) The Company At the Closing Date and the Additional Closing Date you shall have furnished received the opinion of Brobxxx, Xxleger & Harrxxxx XXX, counsel for the Company, dated the Closing Date or caused the Additional Closing Date, as the case may be, addressed to be furnished the Underwriters and in form and substance satisfactory to you at such Time of Delivery a certificate of the Executive Vice PresidentUnderwriters' Counsel, Chief Financial Officer and Treasurer to the effect that:
(i1) He The Company has been duly incorporated and is familiar with validly existing as a corporation in good standing under the internal accounting records laws of the Company.State of California, is duly qualified to do business as a foreign corporation and is in good standing in all other jurisdictions where the ownership or leasing of properties or the conduct of its business requires such qualification, except for jurisdictions in which the failure to so qualify would not have a material adverse effect on the Company and has full corporate power and authority to own its properties and conduct its business as described in the Registration Statement, and has no subsidiaries;
(ii2) He has reviewed the “Recent Developments” section contained in both the Preliminary Prospectus The authorized, issued and the Prospectus. The information presented in such Recent Developments section (A) has been prepared in good faith and based upon assumptions that he believes are reasonable and consistent with the operations outstanding capital stock of the Company is as set forth under the caption "Capitalization" in the Prospectus; all outstanding shares of Common Stock (including the Firm Shares to be sold by the Selling Shareholders and the Additional Shares) have been duly authorized and validly issued, are fully paid and nonassessable, have been issued in compliance with federal and state securities laws, were not issued in violation of or subject to any preemptive rights or other rights to subscribe for or purchase any securities and conform to the description thereof contained in the Prospectus; without limiting the foregoing, there are no preemptive or other rights to subscribe for or purchase any of the Shares to be sold by the Company hereunder;
(B3) is a fair estimate All of the issued and outstanding shares of Clinitec owned beneficially by the Company are so owned free and clear of all liens, encumbrances, equities, claims, security interests, voting trusts or other defects of title whatsoever;
(4) The certificates evidencing the Shares to be delivered hereunder are in due and proper form under California law, and when duly countersigned by the Company's transfer agent and registrar, and delivered to you or upon your order against payment of the agreed consideration therefor in accordance with the provisions of this Agreement, the Shares represented thereby will be duly authorized and validly issued, fully paid and nonassessable, will not have been issued in violation of or subject to any preemptive rights or other rights to subscribe for or purchase securities and will conform in all material respects to the description thereof contained in the Prospectus;
(5) Except as disclosed in or specifically contemplated by the Prospectus, there are no outstanding options, warrants or other rights calling for the issuance of, and, to the best knowledge of such counsel, no commitments, plans or arrangements to issue, any shares of capital stock of the Company or any security convertible into or exchangeable for capital stock of the Company’s total revenues ;
(6) The statements under the captions "Risk Factors - Proprietary Technology," "Risk Factors - Product Liability," "Risk Factors - Uncertainty in Health Care Industry; Government Regulation," "Description of Capital Stock," "Business-Government Regulation" and net income "Shares Eligible for Future Sale," at the three months ended June 30time the Registration Statement became effective, 2011 and has been derived from fairly summarize, in all material respects, the Company’s accounting and/or financial records.matters described therein insofar as such statements constitute a summary of documents referred to therein or matters of law;
Appears in 1 contract
Conditions of Underwriters’ Obligations. The obligations of the Underwriters hereunderto purchase and pay for the Firm Shares and the Additional Shares, as to the Shares to be delivered at each Time of Deliveryprovided herein, shall be subject, in their discretion, to the condition that all representations and warranties and other statements of the Company and of the Selling Stockholders herein are, at and as of such Time of Delivery, true and correct, the condition that the Company and the Selling Stockholders shall have performed all of its and their obligations hereunder theretofore to be performed, and the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(a) hereof; all material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433 under the Act; if the Company has elected to rely upon Rule 462(b) under the Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m., Washington, D.C. time, on the date of this Agreement; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction;
(b) Xxxxx Xxxxx L.L.P., counsel for the Underwriters, shall have furnished to you such written opinion or opinions, dated such Time of Delivery, in form and substance reasonably satisfactory to you, with respect to such matters as you may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;
(c) Xxxxxx & Xxxxxx L.L.P., counsel for the Company, shall have furnished to you their written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex II.
(d) Xxxxxxxx X. Xxxxx, General Counsel and Corporate Secretary of the Company, shall have furnished to you his written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex III.
(e) Xxxx Xxxxxxxxxx & Xxxxxxxxx LLP, special Indiana counsel for the Company, shall have furnished to you their written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex IV.
(f) Xxxxxx LLP, counsel for each of the Selling Stockholders, as indicated in Schedule IIA hereto, shall have furnished to you their written opinion with respect to each of the Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex V.
(g) Such local counsel as you shall reasonably require shall have furnished to you their written opinion with respect to each of the foreign Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex VI.
(h) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, UHY, LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, Flackman Xxxxxxx & Xxxxxx, P.A. shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) Neither the Company nor the Subsidiaries shall have sustained since the date of the latest audited financial statements included in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, other than as set forth or contemplated in the Pricing Prospectus and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or the Subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and the Subsidiaries, other than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Pricing Prospectus;
(k) On or after the Applicable Time, there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the NYSE; (ii) a suspension or material limitation in trading in the Company’s securities on the NYSE; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Texas State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus;
(l) The Shares to be sold at such Time of Delivery shall have been duly admitted for trading and quotation on the NYSE;
(m) The Company shall have obtained and delivered to the Underwriters executed copies of a lock-up agreement from each of its directors and executive officers, the Selling Stockholders and each other stockholder identified on Schedule IV hereto, in the form attached as Annex I hereto;
(n) The Company shall have complied with the provisions of Section 5(c) hereof with respect to the furnishing of prospectuses on the New York Business Day next succeeding the date of this Agreement; and
(o) The Company and the Selling Stockholders shall have furnished or caused to be furnished to you at such Time of Delivery certificates of officers of the Company and of the Selling Stockholders, respectively, satisfactory to you as subject to the accuracy of the representations and warranties of the Company and the Selling StockholdersStockholders herein contained, respectively, herein at as of the date hereof and as of such Time the Closing Date (for purposes of Deliverythis Section 7 "Closing Date" shall refer to the Closing Date for the Firm Shares and any Additional Closing Date, as if different, for the Additional Shares), to the absence from any certificates, opinions, written statements or letters furnished to you or to Underwriters' Counsel pursuant to this Section 7 of any misstatement or omission, to the performance by the Company of its obligations hereunder, and to each of the following additional terms and conditions:
(a) The Registration Statement shall have become effective and all necessary approvals from the NASDAQ National Market shall have been received not later than, if pricing pursuant to Rule 430A: 5:30 P.M., New York time, on the date of this Agreement or at such later time and date as shall have been consented to in writing by you; if the Company shall have elected to rely upon Rule 430A or Rule 434 of the Regulations, the Prospectus shall have been filed with the Commission in a timely fashion in accordance with Section 5(A)(a) hereof and a form of the Prospectus containing information relating to the description of the Shares and the Selling Stockholders method of all of their respective obligations hereunder distribution and similar matters shall have been filed with the Commission pursuant to be performed Rule 424(b) within the applicable time period; and, at or prior to the Closing Date no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereof shall have been issued and no proceedings therefor shall have been initiated or threatened by the Commission.
(b) At the Closing Date, you shall have received the favorable written opinions of Xxxxxxx Law Firm, P.C., LLO, counsel for the Company, and dated the Closing Date addressed to the Underwriters in the form attached hereto as Annex I.
(c) At the Closing Date, you shall have received the favorable written opinion of Xxxxxxx Law Firm, P.C., LLO, counsel for the Selling Stockholders, dated the Closing Date addressed to the Underwriters in the form attached hereto as Annex II.
(d) All proceedings taken in connection with the sale of the Firm Shares and the Additional Shares as herein contemplated shall be reasonably satisfactory in form and substance to you and to Underwriters' Counsel, and the Underwriters shall have received from said Underwriters' Counsel a favorable opinion, dated as of the Closing Date with respect to the issuance and sale of the Shares, the Registration Statement and the Prospectus and such Time of Deliveryother related matters as you may require, and the Company shall have furnished or caused to be furnished certificates Underwriters' Counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(e) At the Closing Date, you shall have received a certificate of the Chief Executive Officer and Chief Financial Officer of the Company, dated the Closing Date, to the matters effect that (i) the condition set forth in subsections subsection (a) of this Section Section
(f) At the time this Agreement is executed and at the Closing Date, you shall have received a comfort letter from Xxxxxx Xxxxxxxx LLP, independent public accountants for the Company, dated, respectively, as of the date of this Agreement and as to such other matters as you may reasonably request.
(p) The Company shall have furnished or caused to be furnished to you at such Time of Delivery a certificate of the Executive Vice President, Chief Financial Officer and Treasurer Closing Date addressed to the effect that:
(i) He is familiar with the internal accounting records of the Company.
(ii) He has reviewed the “Recent Developments” section contained in both the Preliminary Prospectus and the Prospectus. The information presented in such Recent Developments section (A) has been prepared in good faith and based upon assumptions that he believes are reasonable and consistent with the operations of the Company and (B) is a fair estimate the Underwriters and in all material respects of form and substance satisfactory to the Company’s total revenues Underwriters and net income for the three months ended June 30, 2011 and has been derived from the Company’s accounting and/or financial recordsUnderwriters' Counsel.
Appears in 1 contract
Conditions of Underwriters’ Obligations. The obligations of the Underwriters hereunder, as to the Shares to be delivered at the Closing Time and each Time of DeliveryOption Closing Date, shall be subject, in their discretion, subject to the condition that all representations and warranties and other statements of the Company and of the Selling Stockholders herein are, at and as of the Closing Time and such Time of DeliveryOption Closing Date, true and correctcorrect in all material respects, the condition that the Company and the Selling Stockholders shall have performed all of its and their obligations hereunder theretofore to be performed, and the following additional conditions:
(a5(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(a) hereof; all material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433 under the Act; if the Company has elected to rely upon Rule 462(b) under the Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m., Washington, D.C. time, not later than 5:30 p.m. Eastern time on the first business day following the date of this Agreement; hereof, no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your the Representatives' reasonable satisfaction;
(b) Xxxxx Xxxxx L.L.P.. If the Company has elected to rely upon Rule 430A of the 1933 Act Regulations, counsel for the Underwriters, price of the Shares and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have furnished been transmitted to you the Commission for filing pursuant to Rule 424(b) of the 1933 Act Regulations within the applicable time period prescribed for such written opinion filing by the 1933 Act Regulations and in accordance with Section 3(a) hereof, or opinions, dated a post-effective amendment providing such Time of Delivery, in form and substance reasonably satisfactory to you, with respect to such matters as you may reasonably request, and such counsel information shall have received such papers been promptly filed and information as they may reasonably request to enable them to pass upon such matters;
(cdeclared effective in accordance with the requirements of Rule 430A of the 1933 Act Regulations. 5(b) Xxxxxx Winston & Xxxxxx L.L.P.Xxxxxx, counsel for the Company, shall have furnished to you the Representatives their written opinion, dated the Closing Time and such Time of DeliveryOption Closing Date, in form and substance satisfactory to youthe Representatives, to the effect that (except that the opinion set forth on Annex II.
(d) Xxxxxxxx X. Xxxxxin paragraph 5(b)(xi), General Counsel and Corporate Secretary of the Company, shall have furnished to you his written opinion, dated such Time of Delivery, in form and substance satisfactory to you, with respect to the effect set forth on Annex III.
(e) Xxxx Xxxxxxxxxx tax-exempt bonds relating to the Hawthorn Lakes facility, may be given by Ballard, Spahr, Xxxxxxx & Xxxxxxxxx LLPIngersoll, special Indiana bond counsel for the Company, shall have furnished to you their written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex IV.
(f) Xxxxxx LLP, counsel for each of the Selling Stockholders, as indicated in Schedule IIA hereto, shall have furnished to you their written opinion with respect to each of the Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex V.
(g) Such local counsel as you shall reasonably require shall have furnished to you their written opinion with respect to each of the foreign Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex VI.
(h) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, UHY, LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;):
(i) On The Company has been duly incorporated and is validly existing as a corporation in good standing under the date laws of the Prospectus at State of Delaware and has the corporate power and authority to own its properties and conduct its business as described in the Prospectus.
(ii) Each of the Corporate Subsidiaries has been duly incorporated and is validly existing as a time prior corporation in good standing under the laws of its jurisdiction of incorporation and has the corporate power and authority to own its properties and conduct its business as described in the Prospectus.
(iii) Each Limited Partnership Subsidiary has been formed and is validly existing under the laws of its jurisdiction of formation and has the limited partnership power and authority to own its properties and conduct its business as described in the Prospectus.
(iv) The authorized capital stock of the Company conforms as to legal matters to the execution description thereof contained in the Prospectus; all of the issued shares of capital stock of the Company as described in the Prospectus have been duly and validly authorized and issued and are fully paid and nonassessable; and the terms of such shares of capital stock conform in all material respects to all statements and descriptions related thereto contained in the Prospectus and comply with all applicable legal requirements.
(v) The Company and each of the Subsidiaries has been duly qualified as a foreign corporation, limited partnership, or otherwise, as appropriate, for the transaction of business and is in good standing (to the extent applicable) under the laws of each other jurisdiction specified in such opinion (which shall include each jurisdiction in which the Company or any Subsidiary owns, leases, or manages properties, or conducts any other business, so as to require such qualification, or is subject to no material liability or disability by reason of failure to be so qualified in any such jurisdiction (such counsel being entitled to rely in respect of the opinion in this Agreementclause in respect of matters of fact upon certificates of officers of the Company and governmental authorities).
(vi) All of the outstanding shares of capital stock of each Corporate Subsidiary have been duly and validly authorized and issued and are fully paid and nonassessable, at 9:30 a.m.and are directly or indirectly owned by the Company, New York City time, on the effective date free and clear of any post-effective amendment security interest, claim, lien, encumbrance or adverse interest of any nature known to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, Flackman Xxxxxxx & Xxxxxx, P.A. shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;such counsel.
(ivii) Neither the Company nor the Subsidiaries shall have sustained since the date of the latest audited financial statements included in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, To such counsel's knowledge and other than as set forth or contemplated in the Pricing Prospectus and (ii) since Prospectus, there are no legal or governmental proceedings, domestic or foreign, pending to which the respective dates as of which information is given in the Pricing Prospectus there shall not have been Company, any change in the capital stock Subsidiary or long-term debt any officer or director of the Company or any subsidiary is a party or of which any property of the Subsidiaries Company or any changeSubsidiary is the subject which are required to be disclosed in the Prospectus; and, to the best of such counsel's knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others.
(viii) This Agreement has been duly authorized, executed and delivered by the Company. The Pricing Agreement has been duly authorized, executed and delivered by the Company.
(ix) The issuance and sale of the Shares being delivered at the Closing Time and such Option Closing Date by the Company, the performance by the Company of its obligations under this Agreement and the Pricing Agreement, and the consummation by the Company and the Subsidiaries, as applicable, of the transactions herein and therein contemplated, including the application of the net proceeds from the sale of the Shares as described in the Prospectus will not (A) conflict with or result in a breach or violation of any of the terms or provisions of, constitute a default under, or result in the acceleration of the maturity of any indebtedness under, any material indenture, mortgage, deed of trust or loan agreement known to such counsel or other material agreement or instrument known to such counsel to which the Company or any Subsidiary is a party or by which the Company or any Subsidiary is bound or to which any of the property or assets of the Company or any Subsidiary is subject or (B) result in any violation of the provisions of the certificate of incorporation or by-laws, certificate of limited partnership, partnership agreement or other organizational documents, as the case may be, of the Company or any Subsidiary, or any development involving statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company or any Subsidiary or any of their respective properties.
(x) The Shares to be issued and sold by the Company to the Underwriters hereunder have been duly and validly authorized for issuance and sale to the Underwriters, and, when issued and delivered by the Company pursuant to this Agreement against payment of the consideration set forth in the Pricing Agreement, will be duly and validly issued and fully paid and non-assessable. The issuance of the Shares is not subject to any preemptive or similar rights. The terms of the Shares conform in all material respects to all statements and descriptions related thereto contained in the Prospectus and comply with all applicable legal requirements. The Shares conform to the provisions of the Company's charter. The form of share certificate to be used to evidence the Shares is in due and proper form and complies with all applicable legal requirements.
(xi) The issuance and sale of the Shares being delivered at such Closing Time or Option Closing Date by the Company, the performance by the Company of its obligations under this Agreement and the Pricing Agreement, and the consummation by the Company and the Subsidiaries, as applicable, of the transactions herein and therein contemplated, including the application of the proceeds from the sale of the Shares as described in the Prospectus will not adversely affect the exclusion from gross income for federal tax purposes of the interest on the bonds designated "tax-exempt bonds" in the Prospectus.
(xii) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body or other person is required for the issuance and sale of the Shares by the Company or the performance by the Company of its obligations under this Agreement and the Pricing Agreement, and the consummation by the Company and the Subsidiaries, as applicable, of the transactions herein and therein contemplated, except the registration under the 1933 Act of the Shares and such consents, approvals, authorizations, registrations or qualifications as have been obtained prior to the Closing Time or may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Shares by the Underwriters.
(xiii) The statements made under the captions "Risk Factors," "Management's Discussion and Analysis of Financial Condition and Results of Operation - Overview," "Business - Facilities," "Business - Hospital and Health Care Network Affiliations," "Business - Acquisitions, Leases and Development," "Business -Government Regulation," "Management - Compensation of Directors; Indemnification Agreements," "Management--Stock Incentive Plan," "Management- Employment Agreements", "Certain Transactions," "Description of Capital Stock," and "Shares Eligible for Future Sale," in the Prospectus and Items 14 and 15 of Part II of the Registration Statement, to the extent such statements constitute a prospective changesummary of the legal matters or documents referred to therein, are accurate in all material respects and fairly present the information required to be shown (it being understood that such counsel need express no opinion as to the financial statements and related notes thereto and the other financial, statistical and accounting data included in the Registration Statement or affecting Prospectus).
(xiv) The Company is not, and (assuming the general affairsapplication by the Company of the net proceeds of the issue and sale of the Shares in the manner described in the Prospectus under the caption "Use of Proceeds") after giving effect to the issuance and sale of the Shares by the Company will not be, managementan "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act.
(xv) The Registration Statement, as of the Effective Date, and the Prospectus, as of its date, appeared on their face to be appropriately responsive in all material respects to the requirements of the 1933 Act and the 1933 Act Regulations, except that (a) such counsel need express no opinion as to the financial positionstatements and related notes thereto and the other financial, stockholders’ equity statistical, and accounting data included in the Registration Statement or the Prospectus, and (b) such counsel need express no opinion or assurance as to the accuracy, completeness or fairness of the statements contained in the Registration Statement, except to the extent set forth in paragraph 5(b)(xiii) and the paragraph immediately following paragraph 5(b)(xix).
(xvi) The Company and each of the Subsidiaries has such permits, licenses, franchises and authorizations of governmental or regulatory authorities ("permits"), including, without limitation, under any applicable environmental laws, as are necessary to own, lease and operate its respective properties and to conduct its business in the manner described in the Prospectus except where the failure to obtain any required permit would not have a material adverse effect on the condition (financial or otherwise), business, prospects, properties, net worth or results of operations of the Company and the Subsidiaries, considered as a single enterprise; to such counsel's knowledge after due inquiry, the Company and each of the Subsidiaries has fulfilled and performed all of its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other than material impairment of the rights of the holder of any such permit, subject in each case to such qualification as may be set forth or contemplated in the Pricing Prospectus; and, except as described in the Prospectus, such permits contain no restrictions that are materially burdensome to the effect of which, in any such case described in clause (i) Company or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Pricing Prospectus;
(k) On or after the Applicable Time, there shall not have occurred any of the following: Subsidiaries. Without limiting the foregoing, each of the Company's facilities currently holds (ior has pending a renewal application for) the appropriate permit authorizing such facility to furnish services as described under the heading "Business - Services" on page 27 of the Prospectus.
(xvii) To the knowledge of such counsel, there are no contracts or documents of a suspension character that are required to be described in the Prospectus or material limitation in trading in securities generally on filed as exhibits to or incorporated by reference into the NYSE; Registration Statement by the 1933 Act or the 1933 Act Regulations that have not been so described or filed.
(iixviii) a suspension or material limitation in trading The Formation (as such term is defined in the Company’s securities 's prospectus dated May 1, 1997) and the Acquisitions and each of the documents and agreements executed and delivered by the Company, the Subsidiaries and Prime in connection with the Formation and the Acquisitions have been duly authorized, executed and delivered by the parties thereto, are the valid and binding agreements of the parties thereto enforceable by the Company in accordance with their terms (except as enforcement thereof may be limited by bankruptcy, reorganization, insolvency, fraudulent conveyance or transfer, moratorium or similar laws of general applicability relating to or affecting creditors' rights and to general principles of equity). In giving its opinion required by this Section 5(b), such counsel shall additionally state that, although it has not independently verified and is not passing upon and assumes no responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement or Prospectus (except to the extent set forth in paragraph (xiii) above), no facts have come to the attention of such counsel that cause such counsel to believe that (A) the Registration Statement or any further amendment thereto at the time it became effective under the 1933 Act (but after giving effect to any modifications incorporated therein pursuant to Rule 430A under the 1933 Act), contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading (it being understood that such counsel need express no opinion as to the financial statements and related notes thereto and the other financial, statistical, and accounting data included in the Registration Statement or the Prospectus) or that (B) the Prospectus or any further amendment or supplement thereto on the NYSE; (iii) a general moratorium on commercial banking activities declared by either Federal date it was filed pursuant to the 1933 Act Regulations and as of the Closing Time or New York or Texas State authorities or the Option Closing Date, as the case may be, contained an untrue statement of a material disruption fact or omitted to state a material fact necessary to make the statements therein, in commercial banking light of the circumstances in which they were made, not misleading (it being understood that such counsel need express no opinion as to the financial statements and related notes thereto and the other financial, statistical, and accounting data included in the Registration Statement or securities settlement or clearance services in the Prospectus). In rendering such opinion, such counsel may state that they express no opinion as to the laws of any jurisdiction other than the laws of the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus;
(l) The Shares to be sold at such Time of Delivery shall have been duly admitted for trading and quotation on the NYSE;
(m) The Company shall have obtained and delivered to the Underwriters executed copies of a lock-up agreement from each of its directors and executive officers, the Selling Stockholders and each other stockholder identified on Schedule IV hereto, in the form attached as Annex I hereto;
(n) The Company shall have complied with the provisions general corporate law of Section 5(c) hereof with respect to the furnishing of prospectuses on the New York Business Day next succeeding the date of this Agreement; and
(o) The Company Illinois and the Selling Stockholders shall have furnished or caused to be furnished to you at such Time general corporate law of Delivery certificates of officers of the Company and of the Selling Stockholders, respectively, satisfactory to you as to the accuracy of the representations and warranties of the Company and the Selling Stockholders, respectively, herein at and as of such Time of Delivery, as to the performance by the Company and the Selling Stockholders of all of their respective obligations hereunder to be performed at or prior to such Time of Delivery, and the Company shall have furnished or caused to be furnished certificates as to the matters set forth in subsections (a) of this Section and as to such other matters as you may reasonably requestDelaware.
(p) The Company shall have furnished or caused to be furnished to you at such Time of Delivery a certificate of the Executive Vice President, Chief Financial Officer and Treasurer to the effect that:
(i) He is familiar with the internal accounting records of the Company.
(ii) He has reviewed the “Recent Developments” section contained in both the Preliminary Prospectus and the Prospectus. The information presented in such Recent Developments section (A) has been prepared in good faith and based upon assumptions that he believes are reasonable and consistent with the operations of the Company and (B) is a fair estimate in all material respects of the Company’s total revenues and net income for the three months ended June 30, 2011 and has been derived from the Company’s accounting and/or financial records.
Appears in 1 contract
Sources: Underwriting Agreement (Brookdale Living Communities Inc)
Conditions of Underwriters’ Obligations. The several obligations of the Underwriters hereunder, as to purchase and pay for the Underwritten Securities pursuant to the Shares applicable Terms Agreement are subject to be delivered at each the accuracy as of the date hereof and of Closing Time of Delivery, shall be subject, in their discretion, to the condition that all representations and warranties and other statements of the Company and the Operating Partnership contained herein, to the accuracy of the Selling Stockholders herein are, at and as statements of such Time officers of Delivery, true and correctthe Company, the condition that Operating Partnership or any Subsidiary made in any certificate delivered pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholders shall have performed Operating Partnership of all of its their covenants and their other obligations hereunder theretofore to be performedhereunder, and to the following additional further conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(a) hereof; all material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433 under the Act; if the Company has elected to rely upon Rule 462(b) under the ActRegistration Statement, the including any Rule 462(b) Registration Statement Statement, shall have become effective by 10:00 p.m., Washington, D.C. time, on under the date of this Agreement; 1933 Act and no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been under the 1933 Act or proceedings therefor initiated or threatened by the Commission; no stop order suspending or preventing the use of the Prospectus or , and any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of counsel to the Underwriters; (ii) a prospectus containing information relating to the description of the Underwritten Securities and any related Underlying Securities, the specific method of distribution and similar matters shall have been filed within the prescribed time period, and prior to the applicable Closing Time with the Commission in accordance with Rule 424(b) (or any required post-effective amendment providing such information shall have been filed and declared effective in accordance with the requirements of Rule 430A), or, if the Company has elected to rely upon Rule 434 of the 1933 Act Regulations, a Term Sheet including the Rule 434 information shall have been filed with the Commission in accordance with Rule 424(b)(7); (iii) the rating assigned by any nationally recognized statistical rating organization to any Preferred Stock of the Company or debt securities of the Operating Partnership as of the date of the applicable Terms Agreement shall not have been lowered since such date nor shall any such rating organization have publicly announced that it has placed any Preferred Stock of the Company or debt securities of the Operating Partnership on what is commonly termed a "watch list" for possible downgrading; and (iv) there shall not have come to your reasonable satisfaction;attention any facts that would cause you to believe that the Prospectus, together with the applicable Prospectus Supplement, at the time it was required to be delivered to purchasers of the Underwritten Securities, included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances existing at such time, not misleading.
(b) Xxxxx Xxxxx L.L.P.At Closing Time, counsel for the Underwriters, shall have furnished to you such written opinion or opinions, dated such Time of Delivery, in form and substance reasonably satisfactory to you, with respect to such matters as you may reasonably request, and such counsel Representatives shall have received such papers and information the opinion, dated as they may reasonably request to enable them to pass upon such matters;
(c) Xxxxxx of the applicable Closing Time, of King & Xxxxxx L.L.P.Spalding, counsel for the Company, shall have furnished to you their written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex II.
(d) Xxxxxxxx X. Xxxxx, General Counsel and Corporate Secretary of the Company, shall have furnished to you his written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex III.
(e) Xxxx Xxxxxxxxxx & Xxxxxxxxx LLP, special Indiana counsel for the CompanyUnderwriters, shall have furnished to you their written opinion, dated together with signed or reproduced copies of such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex IV.
(f) Xxxxxx LLP, counsel letter for each of the Selling Stockholdersother Underwriters, as indicated in Schedule IIA hereto, shall have furnished to you their written opinion with respect to each of the Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex V.
(g) Such local counsel as you shall reasonably require shall have furnished to you their written opinion with respect to each of the foreign Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex VI.
(h) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, UHY, LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, Flackman Xxxxxxx & Xxxxxx, P.A. shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) Neither the Company nor the Subsidiaries shall have sustained since the date of the latest audited financial statements included in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, other than as set forth or contemplated in the Pricing Prospectus and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or the Subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and the Subsidiaries, other than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Pricing Prospectus;
(k) On or after the Applicable Time, there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the NYSE; (ii) a suspension or material limitation in trading in the Company’s securities on the NYSE; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Texas State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus;
(l) The Shares to be sold at such Time of Delivery shall have been duly admitted for trading and quotation on the NYSE;
(m) The Company shall have obtained and delivered to the Underwriters executed copies of a lock-up agreement from each of its directors and executive officers, the Selling Stockholders and each other stockholder identified on Schedule IV hereto, in the form attached as Annex I hereto;
(n) The Company shall have complied with the provisions of Section 5(c) hereof with respect to the furnishing of prospectuses on the New York Business Day next succeeding the date of this Agreement; and
(o) The Company and the Selling Stockholders shall have furnished or caused to be furnished to you at such Time of Delivery certificates of officers of the Company and of the Selling Stockholders, respectively, satisfactory to you as to the accuracy of the representations and warranties of the Company and the Selling Stockholders, respectively, herein at and as of such Time of Delivery, as to the performance by the Company and the Selling Stockholders of all of their respective obligations hereunder to be performed at or prior to such Time of Delivery, and the Company shall have furnished or caused to be furnished certificates as to the matters set forth in subsections (a) of this Section and as to such other matters as you may reasonably request.
(p) The Company shall have furnished or caused to be furnished to you at such Time of Delivery a certificate of the Executive Vice President, Chief Financial Officer and Treasurer to the effect that:
(i) He The Company is familiar with a corporation duly formed and is validly existing and in good standing under the internal accounting records laws of the CompanyState of Georgia. The Company has the power and authority to own, lease and operate its properties and conduct the business in which it is engaged and, to counsel's knowledge, such corporation is duly qualified as a foreign corporation in the jurisdictions set forth in an exhibit to the opinion.
(ii) He Post GP Holdings, Inc. is a corporation duly formed and is validly existing and in good standing under the laws of the State of Georgia. Post GP Holdings, Inc. has reviewed the “Recent Developments” section contained power and authority to own, lease and operate its properties and conduct the business in both which it is engaged and, to counsel's knowledge, such corporation is duly qualified as a foreign corporation in the Preliminary Prospectus jurisdictions set forth in an exhibit to the opinion. All of the issued and outstanding shares of capital stock of Post GP Holdings, Inc. have been duly authorized and validly issued and fully paid.
(iii) Post LP Holdings, Inc. is a corporation duly formed and is validly existing and in good standing under the Prospectuslaws of the State of Georgia. Post LP Holdings, Inc. has the power and authority to own, lease and operate its properties and conduct the business in which it is engaged and, to counsel's knowledge, such corporation is duly qualified as a foreign corporation in the jurisdictions set forth in an exhibit to the opinion. All of the issued and outstanding shares of capital stock of Post LP Holdings, Inc. have been duly authorized and validly issued and fully paid.
(iv) The Operating Partnership has been duly formed and is validly existing as a limited partnership under the Georgia Act. The information presented Operating Partnership has partnership power and authority to own, lease and operate its properties and to conduct the business in such Recent Developments section which it is engaged and, to counsel's knowledge, is duly qualified as a foreign partnership in the jurisdictions set forth in an Exhibit to the opinion. All of the issued and outstanding interests in the Operating Partnership have been duly authorized and validly issued and fully paid.
(Av) Each of Post Services, Inc., Post Asset Management, Inc., Post Landscape Services, Inc. and RAM Partners, Inc. (the "Significant Subsidiaries") has been prepared duly incorporated and is validly existing and in good faith and based upon assumptions that he believes are reasonable and consistent with standing under the operations laws of the Company and (B) is a fair estimate in all material respects of the Company’s total revenues and net income for the three months ended June 30, 2011 and has been derived from the Company’s accounting and/or financial records.jurisdiction
Appears in 1 contract
Conditions of Underwriters’ Obligations. The respective obligations of the several Underwriters hereunder, as to purchase the Securities hereunder are subject to the Shares to be delivered at each Time accuracy, on and as of Deliverythe date of the Underwriting Agreement and the Closing Date, shall be subject, in their discretionof the representations and warranties of the Company contained herein, to the condition that all representations and warranties and other accuracy of the statements of the Company and of its officers made in any certificates delivered pursuant hereto, to the Selling Stockholders herein are, at and as of such Time of Delivery, true and correct, the condition that performance by the Company and the Selling Stockholders shall have performed all of its and their obligations hereunder theretofore to be performedhereunder, and to each of the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(a4(a) hereof; all material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433 under the Act; of this Agreement, and, if the Company has elected to rely upon Rule 462(b) under the Actapplicable, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m., Washington, D.C. time, a.m. New York City time on the business day following the date of this the Underwriting Agreement; . Prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; no stop order suspending and any request of the Commission for inclusion of additional information in the Registration Statement or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission Exchange Act Reports shall have been complied with to your the reasonable satisfaction;satisfaction of the Underwriters.
(b) Xxxxx Xxxxx L.L.P.The Prospectus (and any amendments or supplements thereto) shall have been printed and copies distributed to the Underwriters as promptly as practicable on or following the date of the Underwriting Agreement or at such other date and time as to which the Underwriters may agree.
(c) All corporate proceedings and other legal matters incident to the authorization, counsel for form and validity of each of the Transaction Documents and the Prospectus, and all other legal matters relating to the Transaction Documents and the transactions contemplated thereby, shall be reasonably satisfactory in all material respects to the Underwriters, and the Company shall have furnished to you such written opinion or opinions, dated such Time of Delivery, in form and substance reasonably satisfactory to you, with respect to such matters as you may reasonably request, and such counsel shall have received such papers the Underwriters all documents and information as that they or their counsel may reasonably request to enable them to pass upon such matters;
(c) Xxxxxx & Xxxxxx L.L.P., counsel for the Company, shall have furnished to you their written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex II.
(d) Xxxxxxxx Bxxxx X. Xxxxx, Senior Vice President and Chief Legal Officer of the Company, Pxxx X. Xxxxxxxx, Vice President, Corporate Counsel and Assistant Secretary of the Company, or Jxxxx X. Xxxxxxx III, Vice President , Deputy General Counsel and Corporate Secretary of the Company, shall have furnished to you the Underwriters his written opinion, addressed to the Underwriters and dated such Time of Deliverythe Closing Date, in form and substance reasonably satisfactory to youthe Underwriters, to the effect set forth on Annex III.
(e) Xxxx Xxxxxxxxxx & Xxxxxxxxx LLP, special Indiana counsel for the Company, shall have furnished to you their written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex IV.
(f) Xxxxxx LLP, counsel for each of the Selling Stockholders, as indicated in Schedule IIA hereto, shall have furnished to you their written opinion with respect to each of the Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, substantially to the effect set forth in Annex V.A hereto.
(ge) Such local counsel as you shall reasonably require Bxxxx Bxxxx L.L.P. shall have furnished to you the Underwriters their written opinion with respect opinion, as counsel to each of the foreign Selling StockholdersCompany, addressed to the Underwriters and dated the First Time of DeliveryClosing Date, in form and substance reasonably satisfactory to youthe Underwriters, substantially to the effect set forth in Annex VIB hereto.
(f) The Underwriters shall have received from Milbank, Tweed, Hxxxxx & MxXxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, as are customarily delivered by underwriters’ counsel in similar offerings and as the Underwriters may reasonably require, and the Company shall have furnished to such counsel such documents and information as they reasonably request for the purpose of enabling them to pass upon such matters.
(g) The Company shall have furnished to the Underwriters a letter (the “Initial Letter”) of Ernst & Young LLP, addressed to the Underwriters and dated as of the date of the Underwriting Agreement, in form and substance reasonably satisfactory to the Underwriters, substantially to the effect set forth in Annex C hereto.
(h) On The Company shall have furnished to the Underwriters a letter (the “Bring-Down Letter”) of Ernst & Young LLP, addressed to the Underwriters and dated the Closing Date (i) confirming that it is an independent registered public accounting firm with respect to the Company and its subsidiaries as required by the Securities Act and the Rules and Regulations, (ii) stating, as of the date of the Bring-Down Letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than three business days prior to the date of the Bring-Down Letter), that the conclusions and findings of such accounting firm with respect to the financial information and other matters covered by the Initial Letter are accurate and (iii) confirming in all material respects the conclusions and findings set forth in the Initial Letter.
(i) The Company shall have furnished to the Underwriters a certificate, dated the Closing Date, of its chief financial officer or any Vice President or Treasurer and its Secretary or any Assistant Secretary stating that (A) such officers have carefully examined the Registration Statement and the Prospectus, (B) in their opinion, the Registration Statement, including the documents incorporated therein by reference, as of the Effective Time, did not include any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading, and the Prospectus, including the documents incorporated therein by reference, as of the date of the Prospectus at Supplement and as of the Closing Date, did not and does not include any untrue statement of a time material fact and did not and does not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (C) as of the Closing Date, the representations and warranties of the Company in this Agreement are true and correct in all material respects, the Company has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder on or prior to the execution Closing Date, no stop order suspending the effectiveness of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed has been issued and no proceedings for that purpose have been instituted or, to such officer’s knowledge, are contemplated by the Commission, and subsequent to the date of this Agreement the most recent financial statements contained in the Prospectus, there has been no material adverse change in the financial position or results of operations of the Company and also at each Time its subsidiaries, taken as a whole, or any material adverse change, or any development involving a prospective material adverse change, in or affecting the condition (financial or otherwise), results of Deliveryoperations or business of the Company and its subsidiaries, UHYtaken as a whole, LLP except as set forth in the Prospectus.
(j) The Indenture and any applicable supplement thereto, shall have furnished to you a letter or lettersbeen duly executed and delivered by the Company and the Trustee, dated and the respective dates of delivery thereof, in form Securities shall have been duly executed and substance satisfactory to you;delivered by the Company and duly authenticated by the Trustee.
(ik) On If any event shall have occurred on or prior to the date Closing Date that requires the Company under Section 4(f) to prepare an amendment or supplement to the Prospectus, such amendment or supplement shall have been prepared, the Underwriters shall have been given a reasonable opportunity to comment thereon as provided in Section 4(c) hereof, and copies of the Prospectus at a time prior as amended or supplemented, shall have been delivered to the Underwriters reasonably in advance of the Closing Date.
(l) Subsequent to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, Flackman Xxxxxxx & Xxxxxx, P.A. shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) Neither the Company nor the Subsidiaries shall have sustained since the date of the latest audited financial statements included in Underwriting Agreement or, if earlier, the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, other than as set forth or contemplated in the Pricing Prospectus and (ii) since the respective dates as of which information is given in the Pricing Registration Statement (exclusive of any amendment thereto that becomes effective on or after the date of this Agreement) and the Prospectus (exclusive of any supplement thereto that is filed with the Commission on or after the date of this Agreement), except as disclosed in or contemplated by the Prospectus, there shall not have been any change in the capital stock or long-term debt (other than any commercial paper program of the Company or asset securitizations by the Subsidiaries Company or subsidiaries of the Company) or any change, or any development involving a prospective change, in or affecting the general affairscondition (financial or otherwise), management, financial position, stockholders’ equity or results of operations or business of the Company and the Subsidiaries, other than its subsidiaries taken as set forth or contemplated in the Pricing Prospectusa whole, the effect of which, in any such case described in clause (i) or (ii)above, is is, in the reasonable judgment of the Representatives Representative(s) on behalf of the Underwriters, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery Securities on the terms and in the manner contemplated in by this Agreement and the Pricing Prospectus;
Prospectus (k) On exclusive of any supplement thereto that is filed with the Commission on or after the Applicable Timedate of this Agreement).
(m) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would, as of the Closing Date, prevent the issuance or sale of the Securities; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued as of the Closing Date which would prevent the issuance or sale of the Securities.
(n) Subsequent to the execution and delivery of the Underwriting Agreement (i) no downgrading shall have occurred in the ratings accorded the Securities or any of the Company’s other debt securities or preferred stock by any “nationally recognized statistical rating organization”, as such term is defined by the Commission for purposes of Rule 436(g)(2) of the Rules and Regulations and (ii) no such organization shall have publicly announced that it has under surveillance or review (other than an announcement with positive implications of a possible upgrading), its ratings of the Securities or any of the Company’s other debt securities or preferred stock.
(o) Subsequent to the execution and delivery of this Agreement there shall not have occurred any of the following: (i) a suspension or material limitation in of trading in securities generally or the establishment of minimum prices on or by, as the case may be, on the NYSE; New York Stock Exchange, the American Stock Exchange, the over-the-counter market, the National Association of Securities Dealers, Inc. or any other regulatory body or governmental authority having jurisdiction (other than as a result of the existence of or triggering of automatic circuit-breakers by such exchanges or regulatory bodies), (ii) a suspension of trading of any securities of the Company on any exchange or material limitation in trading in the Company’s securities on the NYSE; over-the-counter market, (iii) declaration of a general moratorium on commercial banking activities declared by either Federal federal or New York or Texas State state authorities or a material disruption shall have occurred in commercial banking clearance or securities settlement or clearance services systems in the United States; , (iv) the an outbreak or escalation of hostilities involving hostilities, an act of terrorism occurring in the United States or the a declaration by the United States of a national emergency or war or (v) the occurrence of a material adverse change in financial markets or any other calamity or crisis or any change in financialgeneral economic, political or economic financial conditions (or an effect of international conditions on the financial markets in the United States or elsewhereStates) that, if in the effect case of any such event specified of the events described in clause clauses (ivi) or through (v) ), is material and adverse and such event, singly or together with any other such event, makes it, in the reasonable judgment of the Representatives makes it Representative(s) on behalf of the Underwriters, impracticable or inadvisable to proceed with the public offering or the sale or the delivery of the Shares being delivered at such Time of Delivery Securities on the terms and in the manner contemplated by this Agreement and in the Prospectus;
Prospectus (l) The Shares to be sold at such Time exclusive of Delivery shall have been duly admitted for trading and quotation on the NYSE;
(m) The Company shall have obtained and delivered to the Underwriters executed copies of a lock-up agreement from each of its directors and executive officers, the Selling Stockholders and each other stockholder identified on Schedule IV hereto, in the form attached as Annex I hereto;
(n) The Company shall have complied any supplement thereto that is filed with the provisions of Section 5(c) hereof with respect to the furnishing of prospectuses Commission on the New York Business Day next succeeding or after the date of this Agreement; and
(o) The Company ). All opinions, letters, evidence and the Selling Stockholders certificates mentioned above or elsewhere in this Agreement shall have furnished or caused be deemed to be furnished to you at such Time of Delivery certificates of officers of in compliance with the Company provisions hereof only if they are in form and of the Selling Stockholders, respectively, substance reasonably satisfactory to you as to the accuracy of the representations and warranties of the Company and the Selling Stockholders, respectively, herein at and as of such Time of Delivery, as to the performance by the Company and the Selling Stockholders of all of their respective obligations hereunder to be performed at or prior to such Time of Delivery, and the Company shall have furnished or caused to be furnished certificates as to the matters set forth in subsections (a) of this Section and as to such other matters as you may reasonably request.
(p) The Company shall have furnished or caused to be furnished to you at such Time of Delivery a certificate of the Executive Vice President, Chief Financial Officer and Treasurer to the effect that:
(i) He is familiar with the internal accounting records of the Company.
(ii) He has reviewed the “Recent Developments” section contained in both the Preliminary Prospectus and the Prospectus. The information presented in such Recent Developments section (A) has been prepared in good faith and based upon assumptions that he believes are reasonable and consistent with the operations of the Company and (B) is a fair estimate in all material respects of the Company’s total revenues and net income counsel for the three months ended June 30, 2011 and has been derived from the Company’s accounting and/or financial recordsUnderwriters.
Appears in 1 contract
Sources: Underwriting Agreement (Centex Corp)
Conditions of Underwriters’ Obligations. The obligations of the Underwriters hereunderto purchase and pay for the Firm Shares and the Additional Shares, as to the Shares to be delivered at each Time of Deliveryprovided herein, shall be subjectsubject to the accuracy of the representations and warranties of the Company herein contained, in their discretionas of the date hereof and as of the Closing Date (for purposes of this Section 6, "Closing Date" shall refer to the Closing Date for the Firm Shares and any Additional Closing Date, if different, for the Additional Shares), to the condition that all representations and warranties and other absence from any certificates, opinions, written statements or letters furnished to you or to Paul, Hastings, Janoxxxx & Xalkxx XXX ("Underwriters' Counsel") pursuant to this Section 6 of any misstatement or omission, to the performance by the Company and of the Selling Stockholders herein are, at and as of such Time of Delivery, true and correct, the condition that the Company and the Selling Stockholders shall have performed all of its and their obligations hereunder theretofore and to be performed, and the following additional conditions:
(a) The Registration Statement, including any Rule 462(b) Registration Statement, shall have become effective and all necessary approvals of The Nasdaq Stock Market, Inc. shall have been received not later than 5:30 P.M., New York time, on the date of this Agreement, or at such later time and date as shall have been consented to in writing by you; if the Company shall have elected to rely upon Rule 430A or Rule 434 of the Regulations, the Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in a timely fashion in accordance with Section 5(a4(a) hereof; all material required and at or prior to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433 under the Act; if the Company has elected to rely upon Rule 462(b) under the ActClosing Date, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m., Washington, D.C. time, on the date of this Agreement; no stop order suspending the effectiveness of the Registration Statement or any part post-effective amendment thereof shall have been issued and no proceeding for that purpose proceedings therefor shall have been initiated or threatened by the Commission; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction;.
(b) Xxxxx Xxxxx L.L.P.At the Closing Date, counsel for the Underwriters, shall have furnished to you such written opinion or opinions, dated such Time of Delivery, in form and substance reasonably satisfactory to you, with respect to such matters as you may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;
(c) Xxxxxx the opinion of Morgxx, Xxxxx & Xxxxxx L.L.P.Xockius LLP, counsel for the Company, shall have furnished dated the Closing Date, addressed to you their written opinion, dated such Time of Delivery, the Underwriters and in form and substance satisfactory to youUnderwriters' Counsel, to the effect set forth on Annex II.
(d) Xxxxxxxx X. Xxxxx, General Counsel and Corporate Secretary of the Company, shall have furnished to you his written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex III.
(e) Xxxx Xxxxxxxxxx & Xxxxxxxxx LLP, special Indiana counsel for the Company, shall have furnished to you their written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex IV.
(f) Xxxxxx LLP, counsel for each of the Selling Stockholders, as indicated in Schedule IIA hereto, shall have furnished to you their written opinion with respect to each of the Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex V.
(g) Such local counsel as you shall reasonably require shall have furnished to you their written opinion with respect to each of the foreign Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex VI.
(h) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, UHY, LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, Flackman Xxxxxxx & Xxxxxx, P.A. shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) Neither the Company nor the Subsidiaries shall have sustained since the date of the latest audited financial statements included in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, other than as set forth or contemplated in the Pricing Prospectus and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or the Subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and the Subsidiaries, other than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Pricing Prospectus;
(k) On or after the Applicable Time, there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the NYSE; (ii) a suspension or material limitation in trading in the Company’s securities on the NYSE; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Texas State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus;
(l) The Shares to be sold at such Time of Delivery shall have been duly admitted for trading and quotation on the NYSE;
(m) The Company shall have obtained and delivered to the Underwriters executed copies of a lock-up agreement from each of its directors and executive officers, the Selling Stockholders and each other stockholder identified on Schedule IV hereto, in the form attached as Annex I hereto;
(n) The Company shall have complied with the provisions of Section 5(c) hereof with respect to the furnishing of prospectuses on the New York Business Day next succeeding the date of this Agreement; and
(o) The Company and the Selling Stockholders shall have furnished or caused to be furnished to you at such Time of Delivery certificates of officers of the Company and of the Selling Stockholders, respectively, satisfactory to you as to the accuracy of the representations and warranties of the Company and the Selling Stockholders, respectively, herein at and as of such Time of Delivery, as to the performance by the Company and the Selling Stockholders of all of their respective obligations hereunder to be performed at or prior to such Time of Delivery, and the Company shall have furnished or caused to be furnished certificates as to the matters set forth in subsections (a) of this Section and as to such other matters as you may reasonably request.
(p) The Company shall have furnished or caused to be furnished to you at such Time of Delivery a certificate of the Executive Vice President, Chief Financial Officer and Treasurer to the effect that:
(i) He is familiar with the internal accounting records of the Company.
(ii) He has reviewed the “Recent Developments” section contained in both the Preliminary Prospectus and the Prospectus. The information presented in such Recent Developments section (A) has been prepared in good faith and based upon assumptions that he believes are reasonable and consistent with the operations Each of the Company and (B) is a fair estimate in all material respects of the Company’s total revenues and net income for the three months ended June 30, 2011 and its subsidiaries has been derived from duly organized and is validly existing as a corporation in good standing under the Company’s accounting and/or financial records.laws of its jurisdiction of incorporation. Each
Appears in 1 contract
Sources: Underwriting Agreement (Serviceware Technologies Inc/ Pa)
Conditions of Underwriters’ Obligations. The several obligations of the Underwriters hereunderto purchase and pay for the Firm Shares and the Additional Shares, as to the Shares to be delivered at each Time of Deliveryprovided herein, shall be subjectsubject to the accuracy of the representations and warranties of the Company herein contained, in their discretionas of the date hereof and as of the applicable Closing Date (for purposes of this Section 7, “Closing Date” shall refer to the Closing Date for the Firm Shares and any Additional Closing Date, if different, for the Additional Shares), to the condition that all representations and warranties and other statements of performance by the Company and of the Selling Stockholders herein are, at and as of such Time of Delivery, true and correct, the condition that the Company and the Selling Stockholders shall have performed all of its and their obligations hereunder theretofore to be performedhereunder, and to each of the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in a timely fashion in accordance with Section 5(a4(a) hereof; all material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433 under the Act; if the Company has elected to rely upon Rule 462(b) under the Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m., Washington, D.C. time, on the date of this Agreement; no stop order suspending the effectiveness of the Registration Statement or any part thereof post-effective amendment thereto, and no stop order suspending or preventing the use of any Preliminary Prospectus, any Issuer Free Writing Prospectus, or the Prospectus, shall have been issued by the Commission and no proceeding for that purpose proceedings therefor shall have been initiated or threatened by the Commission; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your the Representatives’ reasonable satisfaction;; and all necessary regulatory or stock exchange approvals shall have been received.
(bi) Xxxxx Xxxxx L.L.P.At the Closing Date, the Representatives shall have received the written opinion and negative assurance statement of Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, P.C., counsel for the Underwriters, shall have furnished to you such written opinion or opinionsCompany, dated such Time of Deliverythe Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to you, with respect to such matters as you may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;the Representatives.
(c) At the Closing Date, the Representatives shall have received the written opinion and negative assurance statement of Xxxxxx & Xxxxxx L.L.P.LLP, intellectual property counsel for the Company, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives.
(d) At the Closing Date, the Representatives shall have furnished to you their received the written opinionopinion and negative assurance statement of Underwriters’ Counsel, dated such Time of Deliverythe Closing Date and addressed to the Underwriters, in form and substance satisfactory to youthe Representatives, with respect to the effect set forth on Annex IIissuance and sale of the Shares, the Registration Statement, the Pricing Disclosure Package, the Prospectus and such other matters as the Representatives may require, and the Company shall have furnished to Underwriters’ Counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(de) Xxxxxxxx X. XxxxxAt the Closing Date, General Counsel the Representatives shall have received a certificate of the Chief Executive Officer and Corporate Secretary Chief Financial Officer of the Company, shall have furnished to you his written opinion, dated such Time of Deliverythe Closing Date, in form and substance satisfactory to you, the Representatives as to the effect accuracy of the representations and warranties of the Company set forth on Annex IIIin Section 1 hereof as of the date hereof and as of the Closing Date, as to the performance by the Company of all of its obligations hereunder to be performed at or prior to the Closing Date, as to the matters set forth in subsections (a) and (h) of this Section 7, and as to such other matters as the Representatives may reasonably request.
(ef) Xxxx Xxxxxxxxxx & Xxxxxxxxx At the time this Agreement is executed and at the Closing Date, the Representatives shall have received a comfort letter, from Xxxxxx LLP, special Indiana counsel independent registered public auditing firm for the Company, shall have furnished dated, respectively, as of the date of this Agreement and as of the Closing Date, addressed to you their written opinion, dated such Time of Delivery, the Underwriters and in form and substance satisfactory to youthe Underwriters and Underwriters’ Counsel, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the effect set forth on Annex IVfinancial statements and certain financial information contained in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
(f) Xxxxxx LLP, counsel for each of the Selling Stockholders, as indicated in Schedule IIA hereto, shall have furnished to you their written opinion with respect to each of the Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex V.
(g) Such local counsel as you shall reasonably require shall have furnished to you their written opinion with respect to each of the foreign Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex VI.
(h) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, UHY, LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, Flackman Xxxxxxx & Xxxxxx, P.A. shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) Neither the Company nor the Subsidiaries any Subsidiary shall have sustained sustained, since the date of the latest audited financial statements included or incorporated by reference in the Registration Statement, the Pricing Prospectus Disclosure Package and the Prospectus, any material loss or interference with its business or properties from fire, explosion, flood flood, earthquake, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or court any legal or governmental action, order or decreeproceeding, other than as set forth or contemplated in the Registration Statement, the Pricing Disclosure Package and the Prospectus (exclusive of any supplement thereto); and (ii) since subsequent to the respective dates as of which information is given in the Registration Statement (exclusive of any amendment thereto subsequent to the date hereof) and the Pricing Disclosure Package and the Prospectus (exclusive of any supplement thereto), there shall not have been any change in the capital stock or long-term or short-term debt of the Company or the Subsidiaries or any change, change or any development involving a prospective change, whether or not arising from transactions in or affecting the ordinary course of business, in the business, general affairs, management, condition (financial positionor otherwise), results of operations, stockholders’ equity equity, properties or results of operations prospects of the Company and the Subsidiaries, other than individually or taken as set forth or contemplated in the Pricing Prospectusa whole, the effect of which, in any such case described in clause (i) or (ii)above, is is, in the judgment of the Representatives Representatives, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery Offering on the terms and in the manner contemplated in the Registration Statement, the Pricing Prospectus;Disclosure Package and the Prospectus (exclusive of any such supplement).
(kh) On No Underwriter shall have discovered and disclosed to the Company on or after the Applicable Time, there shall not have occurred prior to such Closing Date that any of the following: Registration Statement, the Pricing Disclosure Package or the Prospectus, or any amendment or supplement thereto, contains an untrue statement of a fact which, in the opinion of Underwriters’ Counsel, is material or omits to state a fact which, in the opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(i) a suspension or material limitation in trading in securities generally on the NYSE; (ii) a suspension or material limitation in trading in the Company’s securities on the NYSE; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Texas State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment As of the date of this Agreement, the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus;
(l) The Shares to be sold at such Time of Delivery shall have been received a duly admitted for trading and quotation on the NYSE;
(m) The Company shall have obtained and delivered to the Underwriters executed copies of a lock-up agreement substantially in the form of Exhibit B hereto (a “Lock-Up Agreement”) from each person who is a director or executive officer of its directors and executive officers, the Selling Stockholders Company and each shareholder and other stockholder identified person or entity listed on Schedule IV hereto, in each case substantially in the form attached hereto as Annex I hereto;Exhibit B.
(nj) The At the Closing Date, the Company shall have complied filed a Notification: Listing of Additional Shares with Nasdaq to satisfy the provisions of Section 5(cCompany’s notification obligation under Nasdaq Listing Rule 5250(e)(2).
(k) hereof FINRA shall have confirmed that it has not raised any objection with respect to the furnishing of prospectuses on the New York Business Day next succeeding the date of this Agreement; and
(o) The Company fairness and the Selling Stockholders shall have furnished or caused to be furnished to you at such Time of Delivery certificates of officers reasonableness of the Company underwriting terms and arrangements relating to the Offering of the Selling Stockholders, respectively, satisfactory to you as to the accuracy of the representations and warranties of the Company and the Selling Stockholders, respectively, herein at and as of such Time of Delivery, as to the performance by the Company and the Selling Stockholders of all of their respective obligations hereunder to be performed at or prior to such Time of Delivery, and the Company shall have furnished or caused to be furnished certificates as to the matters set forth in subsections (a) of this Section and as to such other matters as you may reasonably requestShares.
(pl) The Company shall have furnished the Underwriters and Underwriters’ Counsel with such other certificates, opinions or caused to be other documents as they may have reasonably requested. If any of the conditions specified in this Section 7 shall not have been fulfilled when and as required by this Agreement, or if any of the certificates, opinions, written statements or letters furnished to you at such Time of Delivery a certificate the Representatives or to Underwriters’ Counsel pursuant to this Section 7 shall not be satisfactory in form and substance to the Representatives and to Underwriters’ Counsel, all obligations of the Executive Vice PresidentUnderwriters hereunder may be cancelled by the Representatives at, Chief Financial Officer or at any time prior to, the Closing Date and Treasurer the obligations of the Underwriters to purchase the Additional Shares may be cancelled by the Representatives at, or at any time prior to, any Additional Closing Date. Notice of such cancellation shall be given to the effect that:
(i) He is familiar with the internal accounting records of the CompanyCompany in writing or by telephone. Any such telephone notice shall be confirmed promptly thereafter in writing.
(ii) He has reviewed the “Recent Developments” section contained in both the Preliminary Prospectus and the Prospectus. The information presented in such Recent Developments section (A) has been prepared in good faith and based upon assumptions that he believes are reasonable and consistent with the operations of the Company and (B) is a fair estimate in all material respects of the Company’s total revenues and net income for the three months ended June 30, 2011 and has been derived from the Company’s accounting and/or financial records.
Appears in 1 contract
Conditions of Underwriters’ Obligations. The obligations of the Underwriters hereunder, as Underwriter to purchase and pay for the Shares Securities that it has agreed to be delivered at each Time of Delivery, shall be purchase pursuant to this Agreement are subject, in their discretionthe discretion of the Underwriter, to the condition that all accuracy of the representations and warranties and other statements of the Company and contained herein or in certificates of the Selling Stockholders herein are, at and as officers of such Time of Delivery, true and correct, the condition that the Company and or any subsidiary delivered pursuant to the Selling Stockholders shall have performed all provisions hereof, to the execution of the Price Determination Agreement no later than 5:30 p.m. on the first business day following the date hereof, or at such later time as the Underwriter may agree in writing (in the Underwriter’s sole discretion), to the performance by the Company of its and their obligations hereunder theretofore and to be performed, and the following additional further conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(a) hereof; all material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433 under the Act; if the Company has elected to rely upon Rule 462(b) under the Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m., Washington, D.C. time, no later than 4:00 p.m. on the first business day following the date of this Agreementhereof, or at such later time or on such later date as the Underwriter may agree to in writing; at the Closing Time, no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued under the 1933 Act and no proceeding proceedings for that purpose shall have been initiated be pending or, to the Underwriter’s knowledge or threatened the knowledge of the Company, shall be contemplated by the Commission; no stop order suspending or preventing the use of the Prospectus or , and any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information request on the part of the Commission for additional information shall have been complied with to your reasonable satisfaction;the satisfaction of counsel for the Underwriter. If the Company has elected to rely upon Rule 430A, a prospectus containing the information required by Rule 430A shall have been filed with the Commission in accordance with Rule 424(b) (or a post-effective amendment providing such information shall have been filed and declared effective in accordance with the requirements of Rule 430A).
(b) At the Closing Time, the Underwriter shall have received:
(i) The favorable opinion, dated as of the Closing Time, of Xxxxx & Xxxxxx, P.A. (“Xxxxx L.L.P.& Eveson”), counsel for the Underwriters, shall have furnished to you such written opinion or opinions, dated such Time of DeliveryCompany, in form and substance reasonably satisfactory to you, with respect to such matters as you may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;
(c) Xxxxxx & Xxxxxx L.L.P., counsel for the CompanyUnderwriter, shall have furnished to you their written substantially in the form set forth in Exhibit C and a letter in the form of Exhibit D.
(ii) The favorable opinion, dated such Time as of Deliverythe Closing Time, of Xxxxx & Xxx Xxxxx PLLC (“Xxxxx & Xxx Xxxxx”) counsel for the Underwriter, in form and substance satisfactory to youthe Underwriter. In rendering such opinions, counsel may rely, to the effect set forth on Annex IIextent such counsel deems such reliance necessary or appropriate, upon certificates of governmental officials, certificates or opinions of other counsel reasonably satisfactory to the Underwriter and, as to matters of fact, officers’ certificates. The opinion of such counsel need refer only to matters of North Carolina and federal law and may add other qualifications and explanations of the basis of their opinion as may be reasonably acceptable to the Underwriter.
(dc) Xxxxxxxx X. XxxxxAt the Closing Time and again at the Option Closing Date, General Counsel and Corporate Secretary of the Company, shall have furnished to you his written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex III.
(ei) Xxxx Xxxxxxxxxx & Xxxxxxxxx LLP, special Indiana counsel for the Company, shall have furnished to you their written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex IV.
(f) Xxxxxx LLP, counsel for each of the Selling Stockholders, as indicated in Schedule IIA hereto, shall have furnished to you their written opinion with respect to each of the Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex V.
(g) Such local counsel as you shall reasonably require shall have furnished to you their written opinion with respect to each of the foreign Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex VI.
(h) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent and the Prospectus, as they may then be amended or supplemented, shall contain all statements that are required to be stated therein under the 1933 Act and the 1933 Act Regulations and shall conform in all material respects to the date requirements of this Agreement the 1933 Act and also at each Time of Deliverythe 1933 Act Regulations, UHY, LLP the Company shall have furnished complied in all material respects with Rule 430A (if it shall have elected to you a letter or lettersrely thereon), dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to neither the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, Flackman Xxxxxxx & Xxxxxx, P.A. shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) Neither the Company nor the Subsidiaries Prospectus, as they may then be amended or supplemented, shall have sustained since contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the date of the latest audited financial statements included in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or therein not covered by insurance, or from any labor dispute or court or governmental action, order or decree, other than as set forth or contemplated in the Pricing Prospectus and misleading; (ii) there shall not have been, since the respective dates as of which information is given in the Pricing Prospectus there shall not have been Registration Statement, any material adverse change in the capital stock condition (financial or long-term debt otherwise), earnings, business affairs, assets or business prospects of the Company and its subsidiaries, considered as one enterprise, whether or not arising in the ordinary course of business; (iii) no action, suit or proceeding at law or in equity shall be pending or, to the knowledge of the Company, threatened against the Company or its subsidiaries that would be required to be set forth in the Prospectus that is not set forth therein, and no proceedings shall be pending or, to the knowledge of the Company, threatened against either of the Company or any subsidiary of the Subsidiaries Company before or by any changefederal, state or any development involving a prospective changeother commission, in board or affecting administrative agency wherein an unfavorable decision, ruling or finding would materially adversely affect the general condition (financial or otherwise), earnings, business affairs, management, financial position, stockholders’ equity assets or results of operations business prospects of the Company and the Subsidiariesits subsidiaries, considered as one enterprise, other than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Pricing Prospectus;
(k) On or after the Applicable Time, there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the NYSE; (ii) a suspension or material limitation in trading in the Company’s securities on the NYSE; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Texas State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak Company shall have complied, in all material respects, with all agreements and satisfied all conditions on its part to be performed or escalation of hostilities involving satisfied at or prior to the United States Closing Time or the declaration by the United States of a national emergency or war or Option Closing Date, as applicable; (v) the occurrence other representations and warranties of any other calamity the Company set forth in Section l(a) hereof shall be accurate in all material respects as though expressly made at and as of the Closing Time or crisis Option Closing Date, as applicable; and (vi) no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceeding for that purpose been initiated or, to the best knowledge of the Company, threatened by the Commission. At the Closing Time, the Underwriter shall have received a certificate of the President and the principal financial officer of the Company, dated as of the Closing Time, to such effect.
(d) At the time that this Agreement is executed by the Company, the Underwriter shall have received from Xxxxx Xxxxxx a letter or any change letters, dated such date, in financialform and substance satisfactory to the Underwriter, political or economic conditions confirming that they are independent certified public accountants with respect to the Company within the meaning of the 1933 Act and the 1933 Act Regulations and a “registered public accounting firm” within the meaning of Section 102(a)(12) of Xxxxxxxx-Xxxxx, and stating in effect that, with respect to the Company:
(i) in their opinion, the consolidated financial statements as of December 31, 2004 and 2003, and for each of the years in the United States or elsewherethree year period ended December 31, 2004 and the related financial statement schedules, if any, included or incorporated by reference in the effect Registration Statement and the Prospectus and covered by their opinions included therein comply as to form in all material respects with the applicable accounting requirements of any the 1933 Act and the 1933 Act Regulations;
(ii) on the basis of procedures (but not an audit in accordance with generally accepted accounting standards) specified by the AICPA for a review of interim financial information as described in SAS No. 100, Interim Financial Information, including a reading of the latest available interim consolidated financial statements of the Company, a reading of the minutes of all meetings of the Board of Directors of the Company and the Bank and of each committees of the Board of Directors of the Company and the Bank since June 30, 2005, inquiries of certain officials of the Company and its subsidiaries responsible for financial and accounting matters, and such event other inquiries and procedures as may be specified in clause such letter, nothing came to their attention that caused them to believe that:
(ivA) the unaudited interim consolidated financial information included or (v) incorporated by reference in the judgment Prospectus, if any, do not comply as to form in all material respects with applicable accounting requirements of the Representatives makes it impracticable 1933 Act, or inadvisable to proceed are not presented in conformity with the public offering or the delivery generally accepted accounting principles applied on a basis consistent with that of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated audited financial statements included in the Prospectus;
(lB) The Shares at a specified date not more than three days prior to the date of this Agreement, there was any increase in total borrowings, real estate owned or Federal Home Loan Bank advances of the Company and its consolidated subsidiaries or any decrease in total assets, total deposits or shareholders’ equity of the Company and its consolidated subsidiaries, any increase in the number of outstanding shares of capital stock of the Company and its consolidated subsidiaries or any increase or decrease in loan loss allowance of the Company and its consolidated subsidiaries, in each case as compared with amounts shown in the financial statements at June 30, 2005 included in the Registration Statement, except in all cases for changes, increases or decreases that the Registration Statement discloses have occurred or may occur; or
(C) for the period from June 30, 2005 to a specified date not more than three days prior to the date of this Agreement, there was any decrease in consolidated net interest income, non-interest income, net income or net income per share or any increase in the consolidated provision for loan losses, in each case as compared with a period of comparable length in the preceding year, except in all cases for changes, increases or decreases that the Registration Statement discloses have occurred or may occur; and
(iii) in addition to the procedures referred to in clause (ii) above, they have performed other specified procedures, not constituting an audit, with respect to certain amounts, percentages, numerical data and financial information appearing in the Registration Statement (including the Selected Consolidated Financial Data) (having compared such items with, and having found such items to be sold at in agreement with, the financial statements of the Company or general accounting records of the Company, as applicable, which are subject to the Company’s internal accounting controls or other data and schedules prepared by the Company from such Time records); and
(iv) on the basis of Delivery a review of schedules provided to them by the Company, nothing came to their attention that caused them to believe that the pro forma information set forth in the Prospectus under the heading “Capitalization” had not been correctly calculated on the basis described therein.
(e) At the Closing Time, the Underwriter shall have received from Xxxxx Xxxxxx a letter, in form and substance satisfactory to the Underwriter and dated as of the Closing Time, reaffirming the statements made in the letter(s) furnished pursuant to Section 5(d) hereof, except that the inquiries specified in Section 5(d) hereof shall be made based upon the latest available unaudited interim consolidated financial statements and the specified date referred to shall be a date not more than five days prior to the Closing Time.
(f) At the Closing Time, counsel for the Underwriter shall have been duly admitted furnished with all such documents, certificates and opinions as they may reasonably request for trading the purpose of enabling them to pass upon the issuance and quotation on sale of the NYSE;Securities as contemplated in this Agreement and the matters referred to in Section 5(c) hereof and in order to evidence the accuracy and completeness of any of the representations, warranties or statements of the Company, the performance of any of the covenants of the Company or the fulfillment of any of the conditions herein contained; and all proceedings taken by the Company at or prior to the Closing Time in connection with the authorization, issuance and sale of the Securities as contemplated in this Agreement shall be satisfactory in form and substance to the Underwriter and to counsel for the Underwriter.
(mg) The Company shall have obtained and delivered paid, or made arrangements satisfactory to the Underwriters executed copies of a lock-up agreement from each of its directors and executive officersUnderwriter for the payment of, the Selling Stockholders and each other stockholder identified on Schedule IV hereto, in the form attached all such expenses as Annex I hereto;
(n) The Company shall have complied with the provisions of may be required by Section 5(c) hereof with respect to the furnishing of prospectuses on the New York Business Day next succeeding the date of this Agreement; and
(o) The Company and the Selling Stockholders shall have furnished or caused to be furnished to you at such Time of Delivery certificates of officers of the Company and of the Selling Stockholders, respectively, satisfactory to you as to the accuracy of the representations and warranties of the Company and the Selling Stockholders, respectively, herein at and as of such Time of Delivery, as to the performance by the Company and the Selling Stockholders of all of their respective obligations hereunder to be performed at or prior to such Time of Delivery, and the Company shall have furnished or caused to be furnished certificates as to the matters set forth in subsections (a) of this Section and as to such other matters as you may reasonably request4 hereof.
(ph) The Company shall have furnished In the event the Underwriter exercises its option provided in Section 2 hereof to purchase all or caused to be furnished to you at such Time of Delivery a certificate any portion of the Executive Vice PresidentOption Securities, Chief Financial Officer and Treasurer the obligations of the Underwriter to purchase the Option Securities that it has agreed to purchase shall be subject to the effect thatreceipt by the Underwriter on the Option Closing Date of:
(i) He is familiar with A certificate, dated the internal accounting records Option Closing Date, of the Company.President and the Chief Financial Officer of the Company confirming that the certificate delivered at the Closing Time pursuant to Section 5(c) hereof remains true as of the Option Closing Date;
(ii) He has reviewed The favorable opinion of Xxxxx & Xxxxxx, counsel for the Company, addressed to the Underwriter and dated the Option Closing Date, in form satisfactory to Xxxxx & Xxx Xxxxx, counsel to the Underwriter, relating to the Option Securities and otherwise to the same effect as the opinion required by Section 5(b)(i) hereof;
(iii) The favorable opinion of Xxxxx & Xxx Xxxxx, counsel to the Underwriter, dated the Option Closing Date, relating to the Option Securities and otherwise to the same effect as the opinion required by Section 5(b)(ii) hereof; and
(iv) A letter from Xxxxx Xxxxxx addressed to the Underwriter and dated the Option Closing Date, in form and substance satisfactory to the Underwriter and substantially the same in form and substance as the letter(s) furnished to the Underwriter pursuant to Section 5(e) hereof.
(i) The Common Stock comprising the Securities shall have been qualified or registered for sale, or subject to an available exemption from such qualification or registration, under the “Recent Developmentsblue sky” section contained in both or securities laws of such jurisdictions as shall have been reasonably specified by the Preliminary Prospectus Underwriter, and the ProspectusOffering contemplated by this Agreement shall have been cleared by the NASD.
(j) The Lock-Up Agreements shall have been delivered to the Underwriter. The information presented in such Recent Developments section (A) has been prepared in good faith and based upon assumptions that he believes are reasonable and consistent with the operations If any of the conditions specified in this Section 5 shall not have been fulfilled when and as required by this Agreement, this Agreement may be terminated by the Underwriter on notice to the Company at any time at or prior to the Closing Time, and (B) is a fair estimate such termination shall be without liability of any party to any other party, except as provided in all material respects Section 4 of this Agreement. Notwithstanding any such termination, the Company’s total revenues provisions of Sections 4, 6, 7, 10 and net income for the three months ended June 30, 2011 and has been derived from the Company’s accounting and/or financial records12 of this Agreement shall remain in effect.
Appears in 1 contract
Conditions of Underwriters’ Obligations. The several obligations of the Underwriters hereunderto purchase and pay for the Firm Shares and the Additional Shares, as to the Shares to be delivered at each Time of Deliveryprovided herein, shall be subjectsubject to the accuracy of the representations and warranties of the Company herein contained, in their discretionas of the date hereof and as of the applicable Closing Date (for purposes of this Section 7, “Closing Date” shall refer to the Closing Date for the Firm Shares and any Additional Closing Date, if different, for the Additional Shares), to the condition that all representations and warranties and other statements of performance by the Company and of the Selling Stockholders herein are, at and as of such Time of Delivery, true and correct, the condition that the Company and the Selling Stockholders shall have performed all of its and their obligations hereunder theretofore to be performedhereunder, and to each of the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in a timely fashion in accordance with Section 5(a4(a) hereof; all material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433 under the Act; if the Company has elected to rely upon Rule 462(b) under the Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m., Washington, D.C. time, on the date of this Agreement; no stop order suspending the effectiveness of the Registration Statement or any part thereof post-effective amendment thereto, and no stop order suspending or preventing the use of any Preliminary Prospectus, any Issuer Free Writing Prospectus, or the Prospectus, shall have been issued by the Commission and no proceeding for that purpose proceedings therefor shall have been initiated or threatened by the Commission; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your the Representative’s reasonable satisfaction;; if the Company has elected to rely on Rule 462(b) under the Securities Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m. (New York City time) on the date of this Agreement; and all necessary regulatory or stock exchange approvals shall have been received.
(bi) Xxxxx Xxxxx L.L.P.At the Closing Date the Representative shall have received the written opinion and negative assurance statement of Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, P.C., counsel for the Underwriters, shall have furnished to you such written opinion or opinionsCompany, dated such Time of Deliverythe Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to you, with respect to such matters as you may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;the Representative.
(c) Xxxxxx & Xxxxxx L.L.P.At the Closing Date the Representative shall have received the written opinion of Cooley LLP, intellectual property counsel for the Company, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representative.
(d) At the Closing Date, the Representative shall have furnished to you their received the written opinionopinion and negative assurance statement of Underwriters’ Counsel, dated such Time of Deliverythe Closing Date and addressed to the Underwriters, in form and substance satisfactory to youthe Representative, with respect to the effect set forth on Annex IIissuance and sale of the Shares, the Registration Statement, the Pricing Disclosure Package, the Prospectus and such other matters as the Representative may require, and the Company shall have furnished to Underwriters’ Counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(de) Xxxxxxxx X. Xxxxx, General Counsel At the Closing Date the Representative shall have received a certificate of the Chief Executive Officer and Corporate Secretary Chief Financial Officer of the Company, shall have furnished to you his written opinion, dated such Time of Deliverythe Closing Date, in form and substance satisfactory to you, the Representative as to the effect accuracy of the representations and warranties of the Company set forth on Annex IIIin Section 1 hereof as of the date hereof and as of the Closing Date, as to the performance by the Company of all of its obligations hereunder to be performed at or prior to the Closing Date, as to the matters set forth in subsections (a) and (h) of this Section 7, and as to such other matters as the Representative may reasonably request.
(ef) Xxxx Xxxxxxxxxx & Xxxxxxxxx At the time this Agreement is executed and at the Closing Date, the Representative shall have received a comfort letter, from Xxxxxx LLP, special Indiana counsel independent registered public auditing firm for the Company, shall have furnished dated, respectively, as of the date of this Agreement and as of the Closing Date, addressed to you their written opinion, dated such Time of Delivery, the Underwriters and in form and substance satisfactory to youthe Underwriters and Underwriters’ Counsel, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the effect set forth on Annex IVfinancial statements and certain financial information contained in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
(f) Xxxxxx LLP, counsel for each of the Selling Stockholders, as indicated in Schedule IIA hereto, shall have furnished to you their written opinion with respect to each of the Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex V.
(g) Such local counsel as you shall reasonably require shall have furnished to you their written opinion with respect to each of the foreign Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex VI.
(h) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, UHY, LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, Flackman Xxxxxxx & Xxxxxx, P.A. shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) Neither the Company nor the Subsidiaries any Subsidiary shall have sustained sustained, since the date of the latest audited financial statements included or incorporated by reference in the Registration Statement, the Pricing Prospectus Disclosure Package and the Prospectus, any material loss or interference with its business or properties from fire, explosion, flood flood, earthquake, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or court any legal or governmental action, order or decreeproceeding, other than as set forth or contemplated in the Registration Statement, the Pricing Disclosure Package and the Prospectus (exclusive of any supplement thereto); and (ii) since subsequent to the respective dates as of which information is given in the Registration Statement (exclusive of any amendment thereto subsequent to the date hereof) and the Pricing Disclosure Package and the Prospectus (exclusive of any supplement thereto), there shall not have been any change in the capital stock or long-term or short-term debt of the Company or the Subsidiaries or any change, change or any development involving a prospective change, whether or not arising from transactions in or affecting the ordinary course of business, in the business, general affairs, management, condition (financial positionor otherwise), results of operations, stockholders’ equity equity, properties or results of operations prospects of the Company and the Subsidiaries, other than individually or taken as set forth or contemplated in the Pricing Prospectusa whole, the effect of which, in any such case described in clause (i) or (ii)above, is is, in the judgment of the Representatives Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery Offering on the terms and in the manner contemplated in the Registration Statement, the Pricing Prospectus;Disclosure Package and the Prospectus (exclusive of any such supplement).
(kh) On No Underwriter shall have discovered and disclosed to the Company on or after the Applicable Time, there shall not have occurred prior to such Closing Date that any of the following: Registration Statement, the Pricing Disclosure Package or the Prospectus, or any amendment or supplement thereto, contains an untrue statement of a fact which, in the opinion of Underwriters’ Counsel, is material or omits to state a fact which, in the opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(i) a suspension or material limitation in trading in securities generally on the NYSE; (ii) a suspension or material limitation in trading in the Company’s securities on the NYSE; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Texas State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment As of the Representatives makes it impracticable or inadvisable to proceed with date of this Agreement, the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus;
(l) The Shares to be sold at such Time of Delivery Representative shall have been received a duly admitted for trading and quotation on the NYSE;
(m) The Company shall have obtained and delivered to the Underwriters executed copies of a lock-up agreement substantially in the form of Exhibit B hereto (a “Lock-Up Agreement”) from each person who is a director or executive officer of its directors and executive officers, the Selling Stockholders Company and each shareholder and other stockholder identified person or entity listed on Schedule IV hereto, in each case substantially in the form attached hereto as Annex I hereto;Exhibit B.
(nj) The At the Closing Date, the Company shall have complied filed a Notification: Listing of Additional Shares with Nasdaq to satisfy the provisions of Section 5(cCompany’s notification obligation under Nasdaq Listing Rule 5250(e)(2).
(k) hereof FINRA shall have confirmed that it has not raised any objection with respect to the furnishing of prospectuses on the New York Business Day next succeeding the date of this Agreement; and
(o) The Company fairness and the Selling Stockholders shall have furnished or caused to be furnished to you at such Time of Delivery certificates of officers reasonableness of the Company underwriting terms and arrangements relating to the Offering of the Selling Stockholders, respectively, satisfactory to you as to the accuracy of the representations and warranties of the Company and the Selling Stockholders, respectively, herein at and as of such Time of Delivery, as to the performance by the Company and the Selling Stockholders of all of their respective obligations hereunder to be performed at or prior to such Time of Delivery, and the Company shall have furnished or caused to be furnished certificates as to the matters set forth in subsections (a) of this Section and as to such other matters as you may reasonably requestShares.
(pl) The Company shall have furnished the Underwriters and Underwriters’ Counsel with such other certificates, opinions or caused to be other documents as they may have reasonably requested. If any of the conditions specified in this Section 7 shall not have been fulfilled when and as required by this Agreement, or if any of the certificates, opinions, written statements or letters furnished to you at such Time of Delivery a certificate the Representative or to Underwriters’ Counsel pursuant to this Section 7 shall not be satisfactory in form and substance to the Representative and to Underwriters’ Counsel, all obligations of the Executive Vice PresidentUnderwriters hereunder may be cancelled by the Representative at, Chief Financial Officer or at any time prior to, the Closing Date and Treasurer the obligations of the Underwriters to purchase the Additional Shares may be cancelled by the Representative at, or at any time prior to, any Additional Closing Date. Notice of such cancellation shall be given to the effect that:
(i) He is familiar with the internal accounting records of the CompanyCompany in writing or by telephone. Any such telephone notice shall be confirmed promptly thereafter in writing.
(ii) He has reviewed the “Recent Developments” section contained in both the Preliminary Prospectus and the Prospectus. The information presented in such Recent Developments section (A) has been prepared in good faith and based upon assumptions that he believes are reasonable and consistent with the operations of the Company and (B) is a fair estimate in all material respects of the Company’s total revenues and net income for the three months ended June 30, 2011 and has been derived from the Company’s accounting and/or financial records.
Appears in 1 contract
Conditions of Underwriters’ Obligations. The several obligations of the Underwriters hereunderto purchase and pay for the Firm Shares and the Additional Shares, if any, as provided herein shall be subject to the Shares to be delivered at each Time accuracy of Delivery, shall be subject, in their discretion, to the condition that all representations and warranties and other statements of the Company and of the Selling Stockholders herein are, at and as of such Time of Delivery, true and correct, the condition that the Company and the Selling Stockholders herein contained, as of the date hereof and as of the Closing Date (for purposes of this Section 7, "Closing Date" shall have performed refer to the Closing Date for the Firm Shares and any Additional Closing Date, if different, for the Additional Shares, if any), to the performance by the Company and the Selling Stockholders of all of its and their respective obligations hereunder theretofore to be performedhereunder, and to each of the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in a timely fashion in accordance with Section 5(a5.A(a) hereof; all material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433 under the Act; if the Company has elected to rely upon Rule 462(b) under the Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m., Washington, D.C. time, on the date of this Agreement; no stop order suspending the effectiveness of the Registration Statement or any part thereof post-effective amendment thereto; no stop order suspending or preventing the use of any Preliminary Prospectus or any Issuer Free Writing Prospectus or the Prospectus, shall have been issued by the Commission and no proceeding for that purpose proceedings therefor shall have been initiated or threatened by the Commission; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your the Lead Managers' reasonable satisfaction;; if the Company has elected to rely on Rule 462(b) under the Securities Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m. (Washington, D.C. time) on the date of this Agreement; and all necessary regulatory or stock exchange approvals shall have been received.
(b) Xxxxx Xxxxx L.L.P.At the Closing Date the Lead Managers, counsel for on behalf of all the Underwriters, shall have furnished to you such received (i) the written opinion or opinions, dated such Time of Delivery, in form and substance reasonably satisfactory to you, with respect to such matters as you may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;
(c) Gardere Xxxxx Xxxxxx & Xxxxxx L.L.P.LLP, counsel for the Company, shall have furnished dated the Closing Date and addressed to you their written opinion, dated such Time of Deliverythe Underwriters, in form and substance satisfactory to you, to the effect set forth on Annex II.
(d) Xxxxxxxx X. Xxxxx, General Counsel and Corporate Secretary of the Company, shall have furnished to you his written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex III.
(e) Xxxx Xxxxxxxxxx & Xxxxxxxxx LLP, special Indiana counsel for the Company, shall have furnished to you their written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex IV.
(f) Xxxxxx LLP, counsel for each of the Selling Stockholders, as indicated in Schedule IIA hereto, shall have furnished to you their written opinion with respect to each of the Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to youLead Managers, to the effect set forth in Annex V.
I hereto; and (gii) Such local counsel as you shall reasonably require shall have furnished to you their the written opinion with respect to each of Gardere Xxxxx Xxxxxx LLP, counsel for all the foreign Selling Stockholders, except for Capital Southwest Venture Corporation and Xxxxx X. Xxxxx, unless otherwise specified in Annex II(a) hereto dated the First Time of DeliveryClosing Date and addressed to the Underwriters, in form and substance satisfactory to youthe Lead Managers, to the effect set forth in Annex VIII(a) hereto; the written opinion of Xxxxx Xxxxxxx & Xxxx LLP, counsel to the Selling Stockholder Capital Southwest Venture Corporation, dated the Closing Date and addressed to the Underwriters, in form and substance satisfactory to the Lead Managers, to the effect set forth in Annex II(b) hereto; and the written opinion of Xxxxxx PLLC, counsel to the Selling Stockholder Xxxxx X. Xxxxx, dated the Closing Date and addressed to the Underwriters, in form and substance satisfactory to the Lead Managers, to the effect set forth in Annex II(c) hereto.
(hc) At the Closing Date, the Lead Managers shall have received the written opinion of Underwriters' Counsel dated the Closing Date and addressed to the Underwriters, in form and substance satisfactory to the Lead Managers, with respect to the issuance and sale of the Shares, the Registration Statement, the Pricing Disclosure Package, the Prospectus and such other matters as the Lead Managers may require, and the Company shall have furnished to Underwriters' Counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(d) At the Closing Date, the Lead Managers shall have received a certificate of the Chief Executive Officer and Chief Financial Officer of the Company, dated the Closing Date and in form and substance satisfactory to the Lead Managers, as to the accuracy of the representations and warranties of the Company set forth in Section 1 hereof as of the date hereof and as of the Closing Date, as to the performance by the Company of all of its obligations hereunder to be performed at or prior to the Closing Date, as to the matters set forth in subsections (a), (f) and (g) of this Section 7 and as to such other matters as the Lead Managers may reasonably request.
(e) On the date of the Prospectus at a time prior to the execution of this AgreementAgreement and at the Closing Date, at 9:30 a.m.the Lead Managers on behalf of all of the Underwriters shall have received a comfort letter, New York City timefrom Deloitte & Touche LLP, on independent public accountants for the effective date Company, dated as of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time as of Deliverythe Closing Date, UHY, LLP shall have furnished addressed to you a letter or letters, dated the respective dates of delivery thereof, Underwriters and in form and substance satisfactory to you;the Underwriters and Underwriters' Counsel.
(i) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, Flackman Xxxxxxx & Xxxxxx, P.A. shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(if) Neither the Company nor the Subsidiaries any Subsidiary shall have sustained sustained, since the date of the latest audited financial statements included in the Pricing Prospectus Prospectus, any material loss or interference with its business or properties from fire, explosion, flood flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or court any legal or governmental action, order or decreeproceeding, other than as set forth or contemplated in the Pricing Prospectus (exclusive of any supplement thereto); and (ii) since subsequent to the respective dates as of which information is given in the Registration Statement (exclusive of any amendment thereto subsequent to the date hereof) and the Pricing Prospectus (exclusive of any supplement thereto), there shall not have been any change in the capital stock or long-term or short-term debt of the Company or the Subsidiaries any Subsidiary or any change, change or any development involving a prospective change, whether or not arising from transactions in or affecting the ordinary course of business, in the business, general affairs, management, condition (financial positionor otherwise), results of operations, stockholders’ equity ' equity, properties or results of operations prospects of the Company and the Subsidiaries, other than individually or taken as set forth or contemplated in the Pricing Prospectusa whole, the effect of which, in any such case described in clause (i) or (ii)above, is is, in the judgment of the Representatives Lead Managers, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery Offering on the terms and in the manner contemplated in the Pricing Prospectus;Prospectus (exclusive of any such supplement).
(kg) On or after the Applicable Time, there (i) no downgrading shall not have occurred in the rating accorded the Company's debt securities or the Company's financial strength or claims paying ability by any "nationally recognized statistical rating organization," as such term is defined by the Commission for purposes of Rule 436(g)(2) under the Securities Act, and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the following: Company's debt securities or the Company's financial strength or claims paying ability.
(h) The Lead Managers on behalf of all of the Underwriters shall have received a duly executed lock-up agreement from each person who is a director or officer of the Company and each stockholder listed on Schedule II hereto, in each case substantially in the form attached hereto as Annex IV.
(i) At the Closing Date, the Shares shall have been approved for quotation on Nasdaq upon notice of issuance.
(j) At the Closing Date, the NASD shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements for the Offering.
(k) At the Closing Date, you shall have received a suspension or material limitation in trading in securities generally on certificate of an authorized representative of each of the NYSE; (ii) a suspension or material limitation in trading in Selling Stockholders, dated the Company’s securities on the NYSE; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Texas State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financialClosing Date, political or economic conditions in the United States or elsewhere, if to the effect that the representations and warranties of any such event specified Selling Stockholder set forth in clause (iv) Section 2 hereof are accurate and that such Selling Stockholder has complied with all agreements and satisfied all conditions on its part to be performed or (v) in satisfied hereunder at or prior to the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus;Closing Date.
(l) The Shares On or prior to be sold at such Time of Delivery the Closing Date, you shall have been duly admitted for trading received a properly completed and quotation on the NYSE;executed United States Treasury Department Form W-8 or Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof), as appropriate, from each Selling Stockholder.
(m) The Company shall have obtained furnished the Underwriters and delivered Underwriters' Counsel with such other certificates, opinions or other documents as they may have reasonably requested. If any of the conditions specified in this Section 7 shall not have been fulfilled when and as required by this Agreement, or if any of the certificates, opinions, written statements or letters furnished to the Underwriters executed copies of a lock-up agreement from each of its directors and executive officers, the Selling Stockholders and each other stockholder identified Lead Managers on Schedule IV hereto, in the form attached as Annex I hereto;
(n) The Company shall have complied with the provisions of Section 5(c) hereof with respect to the furnishing of prospectuses on the New York Business Day next succeeding the date of this Agreement; and
(o) The Company and the Selling Stockholders shall have furnished or caused to be furnished to you at such Time of Delivery certificates of officers of the Company and of the Selling Stockholders, respectively, satisfactory to you as to the accuracy of the representations and warranties of the Company and the Selling Stockholders, respectively, herein at and as of such Time of Delivery, as to the performance by the Company and the Selling Stockholders behalf of all of their respective the Underwriters or to Underwriters' Counsel pursuant to this Section 7 shall not be reasonably satisfactory in form and substance to the Lead Managers and to Underwriters' Counsel, all obligations of the Underwriters hereunder to may be performed cancelled by the Lead Managers at, or at or any time prior to such Time of Deliveryto, the Closing Date and the Company obligations of the Underwriters to purchase the Additional Shares, if any, may be cancelled by the Lead Managers at, or at any time prior to, the Additional Closing Date. Notice of such cancellation shall have furnished or caused to be furnished certificates as given to the matters set forth Company in subsections (a) of this Section and as to writing, or by telephone. Any such other matters as you telephone notice shall be confirmed promptly thereafter in writing. The Lead Managers may reasonably request.
(p) The Company shall have furnished or caused to be furnished to you at such Time of Delivery a certificate in their sole discretion waive on behalf of the Executive Vice President, Chief Financial Officer and Treasurer Underwriters compliance with any of the conditions to the effect that:
(i) He is familiar with the internal accounting records obligations of the CompanyUnderwriters hereunder.
(ii) He has reviewed the “Recent Developments” section contained in both the Preliminary Prospectus and the Prospectus. The information presented in such Recent Developments section (A) has been prepared in good faith and based upon assumptions that he believes are reasonable and consistent with the operations of the Company and (B) is a fair estimate in all material respects of the Company’s total revenues and net income for the three months ended June 30, 2011 and has been derived from the Company’s accounting and/or financial records.
Appears in 1 contract
Conditions of Underwriters’ Obligations. The obligations obligation of the Underwriters hereunderUnderwriter to purchase and pay for the Firm Shares and the Additional Shares, as to the Shares to be delivered at each Time of Deliveryprovided herein, shall be subjectsubject to the accuracy of the representations and warranties of the Company herein contained, in their discretionas of the date hereof and as of the Closing Date (for purposes of this Section 7, “Closing Date” shall refer to the Closing Date for the Firm Shares and any Additional Closing Date, if different, for the Additional Shares), to the condition that all representations and warranties and other statements of performance by the Company and of the Selling Stockholders herein are, at and as of such Time of Delivery, true and correct, the condition that the Company and the Selling Stockholders shall have performed all of its and their obligations hereunder theretofore to be performedhereunder, and to each of the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in a timely fashion in accordance with Section 5(a4(a) hereof; all material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433 under the Act; if the Company has elected to rely upon Rule 462(b) under the Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m., Washington, D.C. time, on the date of this Agreement; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction;; if the Company has elected to rely on Rule 462(b) under the Securities Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m. (New York City time) on the date of this Agreement; and all necessary regulatory or stock exchange approvals shall have been received.
(b) Xxxxx Xxxxx L.L.P.No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto, counsel for and no stop order suspending or preventing the Underwritersuse of any Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus, shall have furnished to you such written opinion or opinions, dated such Time of Delivery, in form been issued by the Commission and substance reasonably satisfactory to you, with respect to such matters as you may reasonably request, and such counsel no proceedings therefor shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;been initiated or threatened by the Commission.
(c) Xxxxxx & Xxxxxx L.L.P.At the Closing Date you shall have received the written opinion and negative assurance letter of Dechert LLP, counsel for the Company, dated the Closing Date and addressed to the Underwriter, in form and substance satisfactory to you.
(d) At the Closing Date, you shall have furnished to you their received the written opinionopinion and negative assurance letter of Underwriter’s Counsel, dated such Time of Deliverythe Closing Date and addressed to the Underwriter, in form and substance satisfactory to you, with respect to the effect set forth on Annex IIissuance and sale of the Shares, the Registration Statement, the Pricing Disclosure Package, the Prospectus and such other matters as you may require, and the Company shall have furnished to Underwriter’s Counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(de) Xxxxxxxx X. Xxxxx, General Counsel At the Closing Date you shall have received a certificate of the Chief Executive Officer and Corporate Secretary Chief Financial Officer of the Company, shall have furnished to you his written opinion, dated such Time of Deliverythe Closing Date, in form and substance satisfactory to you, (i) as to the effect accuracy of the representations and warranties of the Company set forth on Annex IIIin Section 1 hereof as of the date hereof and as of the Closing Date, (ii) as to the performance by the Company of all of its obligations hereunder to be performed at or prior to the Closing Date, and (iii) as to the matters set forth in subsections (b) and (g) of this Section 7.
(ef) Xxxx Xxxxxxxxxx & Xxxxxxxxx LLPAt the time this Agreement is executed and at the Closing Date, special Indiana counsel you shall have received a comfort letter, from PricewaterhouseCoopers, independent public accountants for the Company, shall have furnished dated, respectively, as of the date of this Agreement and as of the Closing Date, addressed to you their written opinion, dated such Time of Delivery, the Underwriter and in form and substance satisfactory to youthe Underwriter and Underwriter’s Counsel, to the effect set forth on Annex IV.
(f) Xxxxxx LLP, counsel for each containing statements and information of the Selling Stockholders, as indicated type ordinarily included in Schedule IIA hereto, shall have furnished accountants’ “comfort letters” to you their written opinion underwriters with respect to each of the Selling Stockholdersfinancial statements and certain financial information contained in the Registration Statement, dated the First Time of Delivery, in form Pricing Disclosure Package and substance satisfactory to you, to the effect set forth in Annex V.Prospectus.
(g) Such local counsel as you The Representative shall reasonably require shall not have furnished discovered and disclosed to you their written opinion with respect the Company on or prior to each such closing Date that the Registration statement, the Pricing Disclosure Package or the Prospectus, or any amendment or supplement thereto, contains an untrue statement of the foreign Selling Stockholders, dated the First Time of Deliverya fact which, in form and substance satisfactory to you, the opinion of counsel to the effect set forth in Annex VI.
(h) On the date of the Prospectus at Underwriter, is material or omits to state a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, UHY, LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereoffact which, in form the opinion of such counsel, is material and substance satisfactory is required to you;
(i) On be stated therein or necessary to make the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, Flackman Xxxxxxx & Xxxxxx, P.A. shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;statements therein not misleading.
(i) Neither the Company nor the Subsidiaries Subsidiary shall have sustained sustained, since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus Disclosure Package, any material loss or interference with its business or properties from fire, explosion, flood flood, earthquake, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or court any legal or governmental action, order or decreeproceeding, other than as set forth or contemplated in the Pricing Prospectus Disclosure Package (exclusive of any supplement thereto); and (ii) since subsequent to the respective dates as of which information is given in the Registration Statement (exclusive of any amendment thereto subsequent to the date hereof) and the Pricing Prospectus Disclosure Package (exclusive of any supplement thereto), there shall not have been any change in the capital stock or long-term or short-term debt of the Company or the Subsidiaries Subsidiary or any change, change or any development involving a prospective change, whether or not arising from transactions in or affecting the ordinary course of business, in the business, general affairs, management, condition (financial positionor otherwise), results of operations, stockholders’ equity equity, properties or results of operations prospects of the Company and the SubsidiariesSubsidiary, other than taken as set forth or contemplated in the Pricing Prospectusa whole, the effect of which, in any such case described in clause (i) or (ii)above, is is, in the judgment of the Representatives Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery Offering on the terms and in the manner contemplated in the Pricing Prospectus;Disclosure Package (exclusive of any such supplement).
(k) On or after the Applicable Time, there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the NYSE; (ii) a suspension or material limitation in trading in the Company’s securities on the NYSE; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Texas State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus;
(l) The Shares to be sold at such Time of Delivery Representative shall have been received a duly admitted for trading and quotation on the NYSE;
(m) The Company shall have obtained and delivered to the Underwriters executed copies of a lock-up agreement from each officer and director of its directors and executive officers, the Selling Stockholders and each other stockholder identified Company listed on Schedule IV attached hereto, in each case substantially in the form attached hereto as Annex I hereto;Exhibit B.
(nj) The Company Shares have been duly listed, subject to notice of issuance, on NASDAQ.
(k) At the Closing Date, FINRA shall have complied with the provisions of Section 5(c) hereof confirmed that it has not raised any objection with respect to the furnishing of prospectuses on the New York Business Day next succeeding the date of this Agreement; and
(o) The Company fairness and the Selling Stockholders shall have furnished or caused to be furnished to you at such Time of Delivery certificates of officers reasonableness of the Company underwriting terms and of arrangements for the Selling Stockholders, respectively, satisfactory to you as to the accuracy of the representations and warranties of the Company and the Selling Stockholders, respectively, herein at and as of such Time of Delivery, as to the performance by the Company and the Selling Stockholders of all of their respective obligations hereunder to be performed at or prior to such Time of Delivery, and the Company shall have furnished or caused to be furnished certificates as to the matters set forth in subsections (a) of this Section and as to such other matters as you may reasonably requestOffering.
(pl) The Company shall have furnished the Underwriter and Underwriter’s Counsel with such other certificates or caused to be furnished to you at such Time of Delivery a certificate other documents as they may have reasonably requested. If any of the Executive Vice Presidentconditions specified in this Section 7 shall not have been fulfilled when and as required by this Agreement, Chief Financial Officer all obligations of the Underwriter hereunder may be cancelled by the Representative at, or at any time prior to, the Closing Date and Treasurer the obligations of the Underwriter to purchase the Additional Shares may be cancelled by the Representative at, or at any time prior to, the Additional Closing Date. Notice of such cancellation shall be given to the effect that:
(i) He is familiar with the internal accounting records of the CompanyCompany in writing or by telephone. Any such telephone notice shall be confirmed promptly thereafter in writing.
(ii) He has reviewed the “Recent Developments” section contained in both the Preliminary Prospectus and the Prospectus. The information presented in such Recent Developments section (A) has been prepared in good faith and based upon assumptions that he believes are reasonable and consistent with the operations of the Company and (B) is a fair estimate in all material respects of the Company’s total revenues and net income for the three months ended June 30, 2011 and has been derived from the Company’s accounting and/or financial records.
Appears in 1 contract
Sources: Underwriting Agreement (Biota Pharmaceuticals, Inc.)
Conditions of Underwriters’ Obligations. The several obligations of the Underwriters hereunder, as to purchase and pay for the Underwritten Securities pursuant to the Shares applicable Terms Agreement are subject to be delivered at each the accuracy as of the date hereof and of Closing Time of Delivery, shall be subject, in their discretion, to the condition that all representations and warranties and other statements of the Company and the Operating Partnership contained herein, to the accuracy of the Selling Stockholders herein are, at and as statements of such Time officers of Delivery, true and correctthe Company, the condition that Operating Partnership or any Subsidiary made in any certificate delivered pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholders shall have performed Operating Partnership of all of its their covenants and their other obligations hereunder theretofore to be performedhereunder, and to the following additional further conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(a) hereof; all material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433 under the Act; if the Company has elected to rely upon Rule 462(b) under the ActRegistration Statement, the including any Rule 462(b) Registration Statement Statement, shall have become effective by 10:00 p.m., Washington, D.C. time, on under the date of this Agreement; 1933 Act and no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been under the 1933 Act or proceedings therefor initiated or threatened by the Commission; no stop order suspending or preventing the use of the Prospectus or , and any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of counsel to the Underwriters; (ii) a prospectus containing information relating to the description of the Underwritten Securities and any related Underlying Securities, the specific method of distribution and similar matters shall have been filed within the prescribed time period, and prior to the applicable Closing Time with the Commission in accordance with Rule 424(b) (or any required post-effective amendment providing such information shall have been filed and declared effective in accordance with the requirements of Rule 430A), or, if the Company has elected to rely upon Rule 434 of the 1933 Act Regulations, a Term Sheet including the Rule 434 information shall have been filed with the Commission in accordance with Rule 424(b)(7); (iii) the rating assigned by any nationally recognized statistical rating organization to any Preferred Stock of the Company or debt securities of the Operating Partnership as of the date of the applicable Terms Agreement shall not have been lowered since such date nor shall any such rating organization have publicly announced that it has placed any Preferred Stock of the Company or debt securities of the Operating Partnership on what is commonly termed a "watch list" for possible downgrading; and (iv) there shall not have come to your reasonable satisfaction;attention any facts that would cause you to believe that the Prospectus, together with the applicable Prospectus Supplement, at the time it was required to be delivered to purchasers of the Underwritten Securities, included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances existing at such time, not misleading.
(b) Xxxxx Xxxxx L.L.P.At Closing Time, counsel for the Underwriters, shall have furnished to you such written opinion or opinions, dated such Time of Delivery, in form and substance reasonably satisfactory to you, with respect to such matters as you may reasonably request, and such counsel Representatives shall have received such papers and information the opinion, dated as they may reasonably request to enable them to pass upon such matters;
(c) Xxxxxx of the applicable Closing Time, of King & Xxxxxx L.L.P.Spalding, counsel for the Company, shall have furnished to you their written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex II.
(d) Xxxxxxxx X. Xxxxx, General Counsel and Corporate Secretary of the Company, shall have furnished to you his written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex III.
(e) Xxxx Xxxxxxxxxx & Xxxxxxxxx LLP, special Indiana counsel for the CompanyUnderwriters, shall have furnished to you their written opinion, dated together with signed or reproduced copies of such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex IV.
(f) Xxxxxx LLP, counsel letter for each of the Selling Stockholdersother Underwriters, as indicated in Schedule IIA hereto, shall have furnished to you their written opinion with respect to each of the Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex V.
(g) Such local counsel as you shall reasonably require shall have furnished to you their written opinion with respect to each of the foreign Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex VI.
(h) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, UHY, LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, Flackman Xxxxxxx & Xxxxxx, P.A. shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) Neither the Company nor the Subsidiaries shall have sustained since the date of the latest audited financial statements included in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, other than as set forth or contemplated in the Pricing Prospectus and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or the Subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and the Subsidiaries, other than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Pricing Prospectus;
(k) On or after the Applicable Time, there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the NYSE; (ii) a suspension or material limitation in trading in the Company’s securities on the NYSE; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Texas State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus;
(l) The Shares to be sold at such Time of Delivery shall have been duly admitted for trading and quotation on the NYSE;
(m) The Company shall have obtained and delivered to the Underwriters executed copies of a lock-up agreement from each of its directors and executive officers, the Selling Stockholders and each other stockholder identified on Schedule IV hereto, in the form attached as Annex I hereto;
(n) The Company shall have complied with the provisions of Section 5(c) hereof with respect to the furnishing of prospectuses on the New York Business Day next succeeding the date of this Agreement; and
(o) The Company and the Selling Stockholders shall have furnished or caused to be furnished to you at such Time of Delivery certificates of officers of the Company and of the Selling Stockholders, respectively, satisfactory to you as to the accuracy of the representations and warranties of the Company and the Selling Stockholders, respectively, herein at and as of such Time of Delivery, as to the performance by the Company and the Selling Stockholders of all of their respective obligations hereunder to be performed at or prior to such Time of Delivery, and the Company shall have furnished or caused to be furnished certificates as to the matters set forth in subsections (a) of this Section and as to such other matters as you may reasonably request.
(p) The Company shall have furnished or caused to be furnished to you at such Time of Delivery a certificate of the Executive Vice President, Chief Financial Officer and Treasurer to the effect that:
(i) He The Company is familiar with a corporation duly formed and is validly existing and in good standing under the internal accounting records laws of the CompanyState of Georgia. The Company has the power and authority to own, lease and operate its properties and conduct the business in which it is engaged.
(ii) He Post GP Holdings, Inc. is a corporation duly formed and is validly existing and in good standing under the laws of the State of Georgia. Post GP Holdings, Inc. has reviewed the “Recent Developments” section contained power and authority to own, lease and operate its properties and conduct the business in both which it is engaged and, to counsel's knowledge, such corporation is duly qualified as a foreign corporation in the Preliminary Prospectus jurisdictions set forth in an exhibit to the opinion. All of the issued and outstanding shares of capital stock of Post GP Holdings, Inc. have been duly authorized and validly issued and fully paid.
(iii) Post LP Holdings, Inc. is a corporation duly formed and is validly existing and in good standing under the Prospectuslaws of the State of Georgia. Post LP Holdings, Inc. has the power and authority to own, lease and operate its properties and conduct the business in which it is engaged and, to counsel's knowledge, such corporation is duly qualified as a foreign corporation in the jurisdictions set forth in an exhibit to the opinion. All of the issued and outstanding shares of capital stock of Post LP Holdings, Inc. have been duly authorized and validly issued and fully paid.
(iv) The Operating Partnership has been duly formed and is validly existing as a limited partnership under the Georgia Act. The information presented Operating Partnership has partnership power and authority to own, lease and operate its properties and to conduct the business in such Recent Developments section which it is engaged and, to counsel's knowledge, is duly qualified as a foreign partnership in the jurisdictions set forth in an Exhibit to the opinion. All of the issued and outstanding interests in the Operating Partnership have been duly authorized and validly issued and fully paid.
(Av) Each of the Post Services, Inc., Post Asset Management, Inc., Post Landscape Services, Inc. and RAM Partners, Inc. (the "Significant Subsidiaries") has been prepared duly incorporated and is validly existing and in good faith and based upon assumptions that he believes are reasonable and consistent with standing under the operations laws of the Company and (B) is a fair estimate in all material respects jurisdiction of its incorporation. Each of the Company’s total revenues Significant Subsidiaries has the power and net income for authority to own, lease and operate its properties and to conduct the three months ended June 30business in which it is engaged, 2011 and has been derived from the Company’s accounting and/or financial records.and, to counsel's knowledge, is
Appears in 1 contract
Conditions of Underwriters’ Obligations. The several obligations of the Underwriters hereunderto purchase and pay for the Firm Shares and the Additional Shares, as to the Shares to be delivered at each Time of Deliveryprovided herein, shall be subject, in their discretion, subject to the condition that all accuracy of the representations and warranties and other statements of the Company and the Manager herein contained, as of the Selling Stockholders herein are, at date hereof and as of such Time the Closing Date (for purposes of Deliverythis Section 9, true “Closing Date” shall refer to the Closing Date for the Firm Shares and correctany Additional Closing Date, if different, for the condition that Additional Shares), to the performance by the Company and the Selling Stockholders shall have performed Manager of all of its and their respective obligations hereunder theretofore to be performedhereunder, and to each of the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in a timely fashion in accordance with Section 5(a) hereof; all material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433 under the Act; if the Company has elected to rely upon Rule 462(b) under the Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m., Washington, D.C. time, on the date of this Agreement; no stop order suspending the effectiveness of the Registration Statement or any part thereof post-effective amendment thereto, and no stop order suspending or preventing the use of any Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus, shall have been issued by the Commission and no proceeding for that purpose proceedings therefor shall have been initiated or threatened by the Commission; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction;; and all necessary regulatory or stock exchange approvals shall have been received.
(b) Xxxxx Xxxxx L.L.P.At the Closing Date you shall have received the written opinions and letter of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Company, dated the Closing Date and addressed to the Underwriters, to the effect set forth in Annex I and Annex II hereto.
(c) At the Closing Date you shall have received the written opinion of Miles & Stockbridge P.C., special Maryland counsel to the Company, dated the Closing Date and addressed to the Underwriters, to the effect set forth in Annex III hereto.
(d) At the Closing Date you shall have received the written opinion of Underwriters’ Counsel, dated the Closing Date and addressed to the Underwriters, in form and substance satisfactory to you, with respect to the issuance and sale of the Shares, the Registration Statement, the Pricing Disclosure Package, the Prospectus and such other matters as you may require, and the Company shall have furnished to Underwriters’ Counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(e) At the Closing Date you such written opinion or opinionsshall have received a certificate of two principal executive officers of the Company, dated such Time of Deliverythe Closing Date, in form and substance reasonably satisfactory to you, with respect as to the accuracy of the representations and warranties of the Company set forth in Section 1 hereof as of the Closing Date, as to the performance by the Company of all of its obligations hereunder to be performed at or prior to the Closing Date, as to the matters set forth in subsections (a) and (h) of this Section 9, and as to such other matters as you may reasonably request, and such counsel .
(f) At the Closing Date you shall have received a certificate of an executive officer of the Manager, dated the Closing Date, in form and substance reasonably satisfactory to you, as to the accuracy of the representations and warranties of the Manager set forth in Section 2 hereof as of the date hereof and as of the Closing Date, as to the performance by the Manager of all of its obligations hereunder to be performed at or prior to the Closing Date, and as to such papers and information other matters as they you may reasonably request request; and to enable them the effect that subsequent to pass upon such matters;the date of the Pricing Prospectus and the Prospectus, there has not been any material adverse change in the business, prospects, properties, operations, condition (financial or otherwise) or results of operations of the Manager and its subsidiaries taken as a whole that could reasonably be expected in the aggregate to have a Material Adverse Effect.
(cg) Xxxxxx At the time this Agreement is executed and at the Closing Date, you shall have received a comfort letter, from Deloitte & Xxxxxx L.L.P.Touche LLP, counsel independent public accountants for the Company, shall have furnished dated, respectively, as of the date of this Agreement and as of the Closing Date, addressed to you their written opinion, dated such Time of Delivery, the Underwriters and in form and substance satisfactory to you, to the effect set forth on Annex IIUnderwriters and Underwriters’ Counsel.
(d) Xxxxxxxx X. Xxxxx, General Counsel and Corporate Secretary of the Company, shall have furnished to you his written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex III.
(e) Xxxx Xxxxxxxxxx & Xxxxxxxxx LLP, special Indiana counsel for the Company, shall have furnished to you their written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex IV.
(f) Xxxxxx LLP, counsel for each of the Selling Stockholders, as indicated in Schedule IIA hereto, shall have furnished to you their written opinion with respect to each of the Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex V.
(g) Such local counsel as you shall reasonably require shall have furnished to you their written opinion with respect to each of the foreign Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex VI.
(h) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, UHY, LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, Flackman Xxxxxxx & Xxxxxx, P.A. shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) Neither the Company nor the Subsidiaries any Subsidiary shall have sustained sustained, since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus Prospectus, any material loss or interference with its business or properties from fire, explosion, flood flood, hurricane or other calamity, whether or not covered by insurance, or from any labor dispute or court any legal or governmental action, order or decreeproceeding, other than as set forth or contemplated in the Pricing Prospectus (exclusive of any supplement thereto); and (ii) since subsequent to the respective dates as of which information is given in the Registration Statement (exclusive of any amendment thereto subsequent to the date hereof) and the Pricing Prospectus (exclusive of any supplement thereto), there shall not have been any change in the capital stock or long-term debt of the Company or the Subsidiaries any Subsidiary or any change, change or any development involving a prospective change, whether or not arising from transactions in the ordinary course of business, in the business, condition (financial or affecting the general affairsotherwise), management, financial position, stockholders’ equity or results of operations operations, properties or prospects of the Company and the Subsidiariesits subsidiaries, other than individually or taken as set forth or contemplated in the Pricing Prospectusa whole, the effect of which, in any such case described in clause (i) or (ii)above, is is, in the judgment of the Representatives Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery Offering on the terms and in the manner contemplated in the Pricing Prospectus;Prospectus (exclusive of any such supplement).
(i) At the Closing Date, the Shares shall have been approved for listing upon notice of issuance on the NYSE.
(j) At the Closing Date, the NASD shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements for the Offering.
(k) On or after the Applicable Time, there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the NYSE; (ii) a suspension or material limitation in trading in the Company’s securities on the NYSE; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Texas State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus;
(l) The Shares to be sold at such Time of Delivery shall have been duly admitted for trading and quotation on the NYSE;
(m) The Company shall have obtained and delivered Prior to the Underwriters executed copies of a lock-up agreement from each of its directors and executive officersClosing Date, the Selling Stockholders and each other stockholder identified on Schedule IV hereto, in the form attached as Annex I hereto;
(n) The Company shall have complied with the provisions of Section 5(c) hereof with respect to the furnishing of prospectuses on the New York Business Day next succeeding the date of this Agreement; and
(o) The Company and the Selling Stockholders shall have furnished or caused to be furnished to you at such Time of Delivery certificates of officers of the Company and of the Selling Stockholders, respectively, satisfactory to you as to the accuracy of the representations and warranties of the Company and the Selling Stockholders, respectively, herein at and as of such Time of Delivery, as to the performance by the Company and the Selling Stockholders of all of their respective obligations hereunder to be performed at or prior to such Time of Delivery, and the Company shall have furnished or caused to be furnished certificates as to duly filed the matters set forth in subsections (a) Articles Supplementary with the State Department of this Section Assessments and as to such other matters as you may reasonably requestTaxation of the State of Maryland.
(pl) The Company shall have furnished the Underwriters and Underwriters’ Counsel with such other certificates, opinions or caused to be other documents as they may have reasonably requested. If any of the conditions specified in this Section 9 shall not have been fulfilled when and as required by this Agreement, or if any of the certificates, opinions, written statements or letters furnished to you at such Time of Delivery a certificate of the Executive Vice President, Chief Financial Officer and Treasurer or to the effect that:
(i) He is familiar with the internal accounting records of the Company.
(ii) He has reviewed the “Recent Developments” section contained in both the Preliminary Prospectus and the Prospectus. The information presented in such Recent Developments section (A) has been prepared in good faith and based upon assumptions that he believes are reasonable and consistent with the operations of the Company and (B) is a fair estimate Underwriters’ Counsel pursuant to this Section 9 shall not be in all material respects reasonably satisfactory in form and substance to the Representative and to Underwriters’ Counsel, all obligations of the Company’s total revenues Underwriters hereunder may be cancelled by the Representative at, or at any time prior to, the Closing Date and net income for the three months ended June 30obligations of the Underwriters to purchase the Additional Shares may be cancelled by the Representative at, 2011 and has been derived from or at any time prior to, the Company’s accounting and/or financial recordsAdditional Closing Date. Notice of such cancellation shall be given to the Company in writing or by telephone. Any such telephone notice shall be confirmed promptly thereafter in writing.
Appears in 1 contract
Conditions of Underwriters’ Obligations. The obligations of the Underwriters hereunder, as to the Shares to be delivered at each the Time of Delivery, shall be subject, in their discretion, to the condition that all representations and warranties and other statements of the Company and of the Selling Stockholders herein are, at and as of such Time of Delivery, are true and correct, the condition that the Company and the Selling Stockholders shall have performed all of its and their obligations hereunder theretofore to be performed, and the following additional conditions:
(a) The On the date of the Prospectus at a time prior to the execution of this Agreement, KPMG LLP shall have furnished to the Underwriters a letter, dated the date of delivery thereof, in form and substance satisfactory to the Representatives, containing statements and information of the type ordinarily included in accountants “comfort letters” to underwriters with respect to the financial statements of the Company and certain financial information contained, incorporated by reference in or deemed to be incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus.
(b) At the Time of Delivery, KPMG LLP shall have delivered a letter, dated as of the Time of Delivery, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (a) of this Section, except that the specified date referred to shall be a date not more than three business days prior to the Time of Delivery.
(c) Each of the preliminary prospectus supplement, the Statutory Prospectus and the Prospectus containing the Rule 430B Information shall have been filed with the Commission pursuant to Rule 424(b) under in the Act manner and within the applicable time period prescribed for such filing required by the rules and regulations under the Act Rule 424(b) (without reliance on Rule 424(b)(8)) and in accordance with Section 5(a5.1(a) hereof; all material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433 under the Act; if the Company has elected to rely upon Rule 462(b) under the Act), the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m., Washington, D.C. New York City time, on the date of this Agreement; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or to the Company’s knowledge threatened by the Commission; no stop order preventing or suspending or preventing the use of any preliminary prospectus, the Statutory Prospectus or any Issuer Free Writing the Prospectus shall have been initiated or threatened issued by the CommissionCommission or any other Governmental Entity; and any material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; all requests for additional information on the part of the Commission shall have been complied with to your the reasonable satisfaction;satisfaction of the Representatives and no notice of objection of the Commission to the use of such form of registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) of the Securities Act Regulations shall have been received by the Company.
(bd) Xxxxx Xxxxx L.L.P.Subsequent to the execution and delivery of this Agreement, counsel there shall not have occurred (i) any change, or any development or event involving a prospective change, in the condition (financial or otherwise), results of operations, business, properties or prospects of the Company and its subsidiaries taken as a whole which, in the judgment of the Representatives, is material and adverse and makes it impractical or inadvisable to market the Shares; (ii) any downgrading in the rating of any debt securities of the Company by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) of the Securities Act Regulations), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating); (iii) any change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls the effect of which is such as to make it, in the judgment of the Representatives, impractical to market or to enforce contracts for the Underwriterssale of the Shares, whether in the primary market or in respect of dealings in the secondary market; (iv) any suspension or material limitation of trading in securities generally on the NYSE, or any setting of minimum or maximum prices for trading on such exchange; (v) any suspension of trading of any securities of the Company on any exchange or in the over-the-counter market; (vi) any banking moratorium declared by any U.S. federal or New York State authorities; (vii) any major disruption of settlements of securities, payment, or clearance services in the United States or any other country where such securities are listed or (viii) any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States, any declaration of war by Congress or any other national or international calamity or emergency if, in the judgment of the Representatives, the effect of any such attack, outbreak, escalation, act, declaration, calamity or emergency is such as to make it impractical or inadvisable to market the Shares or to enforce contracts for the sale of the Shares.
(e) The Underwriters shall have received an opinion, dated the Time of Delivery, of R. Xxxxxxx Xxxxx, Chief Corporate Governance Officer of the Company, substantially to the effect as set forth in Annex IV.
(f) The Underwriters shall have received an opinion and letter, dated the Time of Delivery, of Xxxxxxxx and Xxxxxxxx LLP, special counsel to the Company, substantially to the effect as set forth in Annexes V and VI respectively.
(g) Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP shall have furnished to you the Underwriters such written opinion or opinions, dated such the Time of Delivery, in form and substance reasonably satisfactory to you, with respect to such matters as you the Representatives may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;
(c) Xxxxxx & Xxxxxx L.L.P., counsel for the Company, shall have furnished to you their written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex II.
(d) Xxxxxxxx X. Xxxxx, General Counsel and Corporate Secretary of the Company, shall have furnished to you his written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex III.
(e) Xxxx Xxxxxxxxxx & Xxxxxxxxx LLP, special Indiana counsel for the Company, shall have furnished to you their written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex IV.
(f) Xxxxxx LLP, counsel for each of the Selling Stockholders, as indicated in Schedule IIA hereto, shall have furnished to you their written opinion with respect to each of the Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex V.
(g) Such local counsel as you shall reasonably require shall have furnished to you their written opinion with respect to each of the foreign Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex VI.
(h) On The Representatives shall have received on the Time of Delivery a certificate of the Company’s Chief Executive Officer or a Senior Vice President and its Chief Financial Officer stating that: (i) the condition set forth in subsection (c) of this Section 8 has been satisfied, (ii) as of the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each as of the Time of Delivery, UHY, LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form representations and substance satisfactory to you;
(i) On the date warranties of the Prospectus at a time prior to Company set forth in Section 4 of the execution Agreement are accurate, (iii) as of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, Flackman Xxxxxxx & Xxxxxxall agreements, P.A. shall have furnished to you a letter or letters, dated the respective dates conditions and obligations of delivery thereof, in form and substance satisfactory to you;
(i) Neither the Company nor to be performed or complied with hereunder on or prior thereto have been duly performed or complied with, (iv) the Company and the Subsidiaries shall have not sustained since the date of the latest audited financial statements included in the Pricing Prospectus any material loss or interference with its business their respective businesses or properties from fire, explosionflood, flood hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or court any legal or governmental actionproceeding, order (v) there are no pro forma or decree, other than as set forth or contemplated adjusted financial statements that are required to be included in the Pricing Registration Statement, the General Disclosure Package or the Prospectus pursuant to the Securities Act, the Securities Act Regulations, the Exchange Act or the Exchange Act Regulations that have not been included as required and (iivi) since subsequent to the respective dates as of which information is given in the Pricing Registration Statement, the General Disclosure Package and the Prospectus there shall has not have been any material adverse change in the capital stock or long-term debt of the Company or the Subsidiaries or any change, or any development involving a prospective material adverse change, whether or not arising from transactions in the ordinary course of business, in or affecting (y) the general affairsbusiness, managementcondition (financial or otherwise), financial positionresults of operations, stockholders’ equity equity, properties or results of operations prospects of the Company and the Subsidiaries, other than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause individually (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Pricing Prospectus;
(k) On or after the Applicable Time, there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the NYSE; (ii) a suspension or material limitation in trading in the Company’s securities on the NYSE; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Texas State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus;
(l) The Shares to be sold at such Time of Delivery shall have been duly admitted for trading and quotation on the NYSE;
(m) The Company shall have obtained and delivered to the Underwriters executed copies of a lock-up agreement from each of its directors and executive officers, the Selling Stockholders and each other stockholder identified on Schedule IV hereto, in the form attached as Annex I hereto;
(n) The Company shall have complied with the provisions of Section 5(c) hereof with respect to the furnishing of prospectuses on the New York Business Day next succeeding the date of this Agreement; and
(o) The Company and the Selling Stockholders shall have furnished Bank) or caused to be furnished to you at such Time taken as a whole or (z) the Offering or consummation of Delivery certificates of officers any of the Company and of other transactions contemplated by this Agreement, the Selling StockholdersRegistration Statement, respectively, satisfactory to you as to the accuracy of the representations and warranties of the Company General Disclosure Package and the Selling Stockholders, respectively, herein at and as of such Time of Delivery, as to the performance by the Company and the Selling Stockholders of all of their respective obligations hereunder to be performed at or prior to such Time of Delivery, and the Company shall have furnished or caused to be furnished certificates as to the matters set forth in subsections (a) of this Section and as to such other matters as you may reasonably requestProspectus.
(pi) The Company shall have furnished or caused to be have been furnished to you at such Time of Delivery a certificate of the Executive Vice President, Chief Financial Officer Underwriters further certificates and Treasurer to documents as the effect that:
(i) He is familiar with the internal accounting records of the CompanyRepresentatives shall have reasonably requested.
(iij) He has reviewed At or prior to the “Recent Developments” section contained Time of Delivery, the Underwriters shall have received Lock-Up Agreements in both substantially the Preliminary Prospectus and the Prospectus. The information presented in such Recent Developments section (A) has been prepared in good faith and based upon assumptions that he believes are reasonable and consistent with the operations form of the Company and (B) is a fair estimate in all material respects Annex II hereto from each of the Company’s total revenues executive officers and net income directors listed on Schedule II attached hereto.
(k) At the Time of Delivery, the Shares shall have been approved for listing on the three months ended June 30NYSE.
(l) As of the date hereof and at the Time of Delivery, 2011 the Chief Financial Officer of the Company shall have furnished to the Representatives a certificate with respect to certain financial information contained in the General Disclosure Package and has the Prospectus, dated the respective dates of delivery thereof, in substantially the form of Annex VI. The Company will furnish the Representatives with such conformed copies of such opinions, certificates, letters and documents as the Representatives reasonably request. If any of the conditions hereinabove provided for in this Section 8 shall not have been derived from satisfied when and as required by this Agreement, this Agreement may be terminated by the Company’s accounting and/or financial recordsRepresentatives by notifying the Company of such termination in writing or by telegram at or prior to the Time of Delivery. The Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder.
Appears in 1 contract
Sources: Underwriting Agreement (New York Community Bancorp Inc)
Conditions of Underwriters’ Obligations. The several obligations of the Underwriters hereunderto purchase and pay for the Firm Shares as provided herein on the Closing Date and, with respect to the Option Shares, the Option Closing Date, are subject to the accuracy of the Company’s representations and warranties set forth in Section 1 hereof, as of the date hereof and at the Closing Date (as if made at the Closing Date) and, with respect to the Shares to be delivered Option Shares, as of the Option Closing Date (as if made at each Time of Delivery, shall be subject, in their discretionthe Option Closing Date), to the condition that all accuracy of each Selling Stockholder’s representations and warranties set forth in Section 2 hereof, as of the date hereof and other statements of at the Closing Date (as if made at the Closing Date), to the timely performance by the Company and each of the Selling Stockholders herein are, at and as of such Time of Delivery, true and correct, the condition that the Company and the Selling Stockholders shall have performed all of its covenants and their other obligations hereunder theretofore to be performedhereunder, and to the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(a) hereof; all material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433 under the Act; if the Company has elected to rely upon Rule 462(b) under the ActRegistration Statement, the including any Rule 462(b) Registration Statement shall have Statement, has become effective by 10:00 p.m.and, Washingtonas of the Closing Date, D.C. time, on the date of this Agreement; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have post-effective amendment thereto has been issued under the Act, no order preventing or suspending the use of any Preliminary Prospectus or the Prospectus has been issued and no proceeding proceedings for that purpose any of those purposes have been instituted or are pending or, to the Company’s knowledge, contemplated; and the Company has complied with each request (if any) from the Commission for additional information; all filings required by Rules 424 and 430A under the Act shall have been initiated or threatened by timely made without reliance on Rule 424(b)(8); and FINRA shall have raised no objection to the Commission; no stop order suspending or preventing the use fairness and reasonableness of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; underwriting terms and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction;arrangements.
(b) Xxxxx Xxxxx L.L.P.Between the date hereof and the Closing Date (or the Option Closing Date, counsel for as the case may be), no Material Adverse Change shall have occurred or become known to the Company that, in the Underwriters’ judgment, shall have furnished to you such written opinion or opinions, dated such Time of Delivery, in form and substance reasonably satisfactory to you, with respect to such matters as you may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;
(c) Xxxxxx & Xxxxxx L.L.P., counsel for the Company, shall have furnished to you their written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex II.
(d) Xxxxxxxx X. Xxxxx, General Counsel and Corporate Secretary of the Company, shall have furnished to you his written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex III.
(e) Xxxx Xxxxxxxxxx & Xxxxxxxxx LLP, special Indiana counsel for the Company, shall have furnished to you their written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex IV.
(f) Xxxxxx LLP, counsel for each of the Selling Stockholders, as indicated in Schedule IIA hereto, shall have furnished to you their written opinion with respect to each of the Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex V.
(g) Such local counsel as you shall reasonably require shall have furnished to you their written opinion with respect to each of the foreign Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex VI.
(h) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, UHY, LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, Flackman Xxxxxxx & Xxxxxx, P.A. shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) Neither the Company nor the Subsidiaries shall have sustained since the date of the latest audited financial statements included in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, other than as set forth or contemplated in the Pricing Prospectus and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or the Subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and the Subsidiaries, other than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Pricing Prospectus;
(k) On or after the Applicable Time, there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the NYSE; (ii) a suspension or material limitation in trading in the Company’s securities on the NYSE; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Texas State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery as contemplated by the Prospectus.
(c) The Underwriters shall have received, on the terms Closing Date and the Option Closing Date, as the case may be, an opinion of Winston & Sxxxxx LLP, counsel for the Company, in form and substance satisfactory to the manner contemplated Representative, to the effect set forth in Exhibit A attached hereto, which opinion shall be dated the Prospectus;Closing Date or the Option Closing Date, as the case may be, and addressed to the Underwriters.
(ld) The Shares to be sold at such Time of Delivery Underwriters shall have been duly admitted for trading and quotation received, on the NYSE;
(m) The Company shall have obtained Closing Date an opinion from Winston & Sxxxxx LLP and delivered to the Underwriters executed copies of a lock-up agreement from Hxxxxxxx Mxxxxx Sxxxxxxx and Cxxx LLP, each of its directors and executive officers, the Selling Stockholders and each other stockholder identified on Schedule IV hereto, in the form attached as Annex I hereto;
(n) The Company shall have complied with the provisions of Section 5(c) hereof with respect to the furnishing of prospectuses on the New York Business Day next succeeding the date of this Agreement; and
(o) The Company and the Selling Stockholders shall have furnished or caused to be furnished to you at such Time of Delivery certificates of officers of the Company and of counsel for the Selling Stockholders, respectively, in form and substance satisfactory to you as the Representative, to the accuracy of effect set forth in Exhibit B attached hereto, which opinion shall be dated the representations Closing Date and warranties of addressed to the Company Underwriters.
(e) The Underwriters shall have received, on the Closing Date and the Selling StockholdersOption Closing Date, respectivelyas the case may be, herein at an opinion from K&L Gates LLP, counsel for the Underwriters, dated the Closing Date or the Option Closing Date, as the case may be, and as of such Time of Deliveryaddressed to the Underwriters, as to the performance by the Company and the Selling Stockholders of all of their respective obligations hereunder to be performed at or prior to such Time of Delivery, and the Company shall have furnished or caused to be furnished certificates as to the matters set forth in subsections (a) of this Section and as to such other matters as you the Underwriters may reasonably request.
(pf) At the time of the execution of this Agreement, the Underwriters shall have received from Cxxxx Hxxxxxx LLP, independent registered public accountants, a letter dated the date hereof, in form and substance satisfactory to the Underwriters, containing statements and information of the type ordinarily included in accountants “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Disclosure Package.
(g) At the Closing Date and the Option Closing Date, as the case may be, the Underwriters shall have received a letter from Cxxxx Hxxxxxx LLP, independent registered public accountants, to the effect that such firm reaffirms the statements in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than three business days prior to the Closing Date with respect to the financial statements and certain financial information contained in the Prospectus.
(h) The Company Underwriters shall have furnished or caused to be furnished to you at such Time of Delivery received, on the Closing Date and the Option Closing Date, as the case may be, a certificate of the Company, dated the Closing Date or the Option Closing Date, as the case may be, signed by the Chief Executive Vice President, Officer and the Chief Financial Officer and Treasurer of the Company, to the effect that:
(i) He is familiar with the internal accounting records representations and warranties of the Company.Company set forth in Section 1 of this Agreement are true and correct, as if made on and as of the Closing Date or the Option Closing Date, as the case may be, and the Company has complied with all of the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date or the Option Closing Date, as the case may be;
(ii) He for the period from and after the date hereof and prior to the Closing Date or the Option Closing Date, as the case may be, there has reviewed not occurred any Material Adverse Change;
(iii) such officer has examined the “Recent Developments” section Registration Statement and nothing has come to his attention that would lead him to believe that: (1) as of the effective date of the Registration Statement, the Registration Statement and any amendments thereto contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in both order to make the Preliminary statements therein not misleading, and (2) since the effective date of the Registration Statement, there has occurred any event required to be set forth in a supplement to or an amendment of the Prospectus that has not been so set forth in such supplement or amendment;
(iv) such officer has examined the Prospectus, including any amendments and supplements thereto, and nothing has come to his attention that would lead him to believe that the Prospectus as of its date and the ProspectusClosing Date or the Option Closing Date, as the case may be, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and
(v) such officer has examined the Disclosure Package and nothing has come to his attention that would lead him to believe that the Disclosure Package, as of the Initial Sale Time, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(i) The Underwriters shall have received, on the Closing Date, a certificate from each Selling Stockholder, dated the Closing Date, to the effect that:
(i) the representations and warranties of the Selling Stockholder set forth in Section 2 of this Agreement are true and correct, as if made on and as of the Closing Date, and the Selling Stockholder has complied with all of the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date; and
(ii) the Selling Stockholder has complied with all agreements and all conditions on its part to be performed under this Agreement at or prior to the Closing Date.
(j) The Company has taken all actions necessary to effect the listing of the Shares to be sold hereunder on The NASDAQ Capital Market.
(k) The Underwriters and counsel for the Underwriters shall have received, on or before each of the Closing Date and the Option Closing Date, as the case may be, such information, documents and opinions as they may reasonably require for the purposes of enabling them to pass upon the sale of the Shares as contemplated herein, or in order to evidence the accuracy of any of the representations and warranties or the satisfaction of any of the conditions or agreements, herein contained.
(l) On or prior to the date hereof, the persons identified on Annex II shall have furnished to the Underwriters lock-up agreements in a form or forms acceptable to the Underwriters, and each such agreement shall be in full force and effect on the Closing Date and the Option Closing Date, as the case may be. The information presented If any condition specified in this Section 7 is not satisfied when and as required to be satisfied, this Agreement may be terminated by the Underwriters by notice to the Company at any time on or prior to the Closing Date and, with respect to the Option Shares, at any time prior to the Option Closing Date, which termination shall be without liability on the part of any party to any other party, except that Section 6, Section 8 and Section 9 shall at all times be effective and shall survive such Recent Developments section (A) has been prepared termination. All opinions, certificates, letters and other documents delivered pursuant to this Section 7 will be in good faith and based upon assumptions that he believes are reasonable and consistent compliance with the operations provisions hereof only if they are satisfactory in form and substance to the reasonable judgment of the Company and (B) is a fair estimate in all material respects of the Company’s total revenues and net income for the three months ended June 30, 2011 and has been derived from the Company’s accounting and/or financial recordsUnderwriters.
Appears in 1 contract
Conditions of Underwriters’ Obligations. The several obligations of the Underwriters hereunderto purchase and pay for the Firm Shares and the Additional Shares, as to the Shares to be delivered at each Time of Deliveryprovided herein, shall be subjectsubject to the accuracy of the representations and warranties of the Company, in their discretionthe Operating Partnership and the Advisor herein contained, as of the date hereof and as of the Closing Date (for purposes of this Section 7, "Closing Date" shall refer to the Closing Date for the Firm Shares and any Additional Closing Date, if different, for the Additional Shares), to the condition that all representations and warranties and other statements of performance by the Company and of the Selling Stockholders herein are, at and as of such Time of Delivery, true and correctCompany, the condition that the Company Operating Partnership and the Selling Stockholders shall have performed Advisor of all of its and their respective obligations hereunder theretofore to be performedhereunder, and to each of the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in a timely fashion in accordance with Section 5(a4(a) hereof; all material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433 under the Act; if the Company has elected to rely upon Rule 462(b) under the Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m., Washington, D.C. time, on the date of this Agreement; no stop order suspending the effectiveness of the Registration Statement or any part thereof post-effective amendment thereto, and no stop order suspending or preventing the use of any Preliminary Prospectus, the Pricing Prospectus, any Issuer Free Writing Prospectus or the Prospectus, shall have been issued by the Commission and no proceeding for that purpose proceedings therefor shall have been initiated or threatened by the Commission; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction;; if the Company has elected to rely on Rule 462(b) under the Securities Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m. (Washington, D.C. time) on the date of this Agreement; and all necessary regulatory or stock exchange approvals shall have been received.
(b) Xxxxx Xxxxx L.L.P., counsel for At the Underwriters, shall have furnished to Closing Date you such written opinion or opinions, dated such Time of Delivery, in form and substance reasonably satisfactory to you, with respect to such matters as you may reasonably request, and such counsel shall have received such papers the written opinion of each of Katten Muchin Rosenman LLP, Hahn Loeser & Parks LLP and information as they may reasonably request to enable them to pass upon such matters;
(c) Xxxxxx Post Heymanx & Xxxxxx L.L.P.Xxxxxxxx LXX, counsel for the Company, shall have furnished to you their written opinionxxxxsel fox xxx Xxxxxny, dated such Time of Deliverythe Closing Xxxx xxd addressed to the Underwriters, in form and substance satisfactory to you, each to the effect set forth on in Annex III hereto.
(dc) Xxxxxxxx X. XxxxxAt the Closing Date, General Counsel and Corporate Secretary of the Company, you shall have furnished to you his received the written opinionopinion of Underwriters' Counsel, dated such Time of Deliverythe Closing Date and addressed to the Underwriters, in form and substance satisfactory to you, with respect to the effect set forth on Annex III.
(e) Xxxx Xxxxxxxxxx & Xxxxxxxxx LLPissuance and sale of the Shares, special Indiana counsel for the CompanyRegistration Statement, the Pricing Disclosure Package, the Prospectus and such other matters as you may require, and the Company shall have furnished to Underwriters' Counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(d) At the Closing Date you their written opinionshall have received a certificate of the Chief Executive Officer and Chief Financial Officer of the Company and the Operating Partnership, dated such Time of Deliverythe Closing Date, in form and substance satisfactory to you, as to the effect accuracy of the representations and warranties of the Company and the Operating Partnership set forth on Annex IVin Section 1 hereof as of the date hereof and as of the Closing Date, as to the performance by the Company and the Operating Partnership of all of their respective obligations hereunder to be performed at or prior to the Closing Date, as to the matters set forth in subsections (a), (f) and (g) of this Section 7, and as to such other matters as you may reasonably request.
(fe) Xxxxxx At the time this Agreement is executed and at the Closing Date, you shall have received a comfort letter, from each of KPMG LLP and Deloitte & Touche LLP, counsel independent public accountants for each the Company, dated, respectively, as of the Selling Stockholders, date of this Agreement and as indicated in Schedule IIA hereto, shall have furnished to you their written opinion with respect to each of the Selling StockholdersClosing Date, dated addressed to the First Time of Delivery, Underwriters and in form and substance satisfactory to you, to the effect set forth in Annex V.
(g) Such local counsel as you shall reasonably require shall have furnished to you their written opinion with respect to each of the foreign Selling Stockholders, dated the First Time of Delivery, in form Underwriters and substance satisfactory to you, to the effect set forth in Annex VIUnderwriters' Counsel.
(h) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, UHY, LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, Flackman Xxxxxxx & Xxxxxx, P.A. shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) Neither the Company nor the Subsidiaries any Subsidiary shall have sustained sustained, since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus Prospectus, any material loss or interference with its business or properties from fire, explosion, flood flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or court any legal or governmental action, order or decreeproceeding, other than as set forth or contemplated in the Pricing Prospectus (exclusive of any supplement thereto); and (ii) since subsequent to the respective dates as of which information is given in the Registration Statement (exclusive of any amendment thereto subsequent to the date hereof) and the Pricing Prospectus (exclusive of any supplement thereto), there shall not have been any change in the capital stock or long-term or short-term debt of the Company or the Subsidiaries any Subsidiary or any change, change or any development involving a prospective change, whether or not arising from transactions in or affecting the ordinary course of business, in the business, general affairs, management, condition (financial positionor otherwise), results of operations, stockholders’ equity ' equity, properties or results of operations prospects of the Company and the Subsidiaries, other than individually or taken as set forth a whole, or contemplated in of the Pricing ProspectusAdvisor, the effect of which, in any such the case described in of clause (i) or and (ii)) described above, is is, in the judgment of the Representatives Lead Manager, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery Offering on the terms and in the manner contemplated in the Pricing Prospectus;Prospectus (exclusive of any such supplement).
(kg) On or after the Applicable Time, there (i) no downgrading shall not have occurred in the rating accorded the Company's debt securities or preferred stock or the Company's financial strength or claims paying ability by any "nationally recognized statistical rating organization", as such term is defined by the Commission for purposes of Rule 436(g)(2) under the Securities Act, and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the following: (i) a suspension Company's debt securities or material limitation in trading in securities generally on the NYSE; (ii) a suspension preferred stock or material limitation in trading in the Company’s securities on the NYSE; (iii) a general moratorium on commercial banking activities declared by either Federal 's financial strength or New York or Texas State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus;claims paying ability.
(lh) The Shares to be sold at such Time of Delivery You shall have been received a duly admitted for trading and quotation on the NYSE;
(m) The Company shall have obtained and delivered to the Underwriters executed copies of a lock-up agreement from each of its directors and executive officersMr. Michael L. Ashner, the Selling Stockholders Advisor and each other stockholder identified shareholder listed on Schedule IV heretoSxxxxxxx XX xxxxxx, in each case substantially in the form attached hereto as Annex I hereto;II.
(ni) The Company At the Closing Date, the Shares shall have complied with been approved for listing on the provisions of Section 5(cNYSE.
(j) hereof At the Closing Date, the NASD shall have confirmed that it has not raised any objection with respect to the furnishing fairness and reasonableness of prospectuses on the New York Business Day next succeeding underwriting terms and arrangements for the date of this Agreement; andOffering.
(ok) The Company and At the Selling Stockholders Closing Date, you shall have furnished or caused to be furnished to you at such Time of Delivery certificates of officers received a certificate of the Company Chief Executive Officer and Chief Financial Officer of the Selling StockholdersAdvisor, respectively, dated the Closing Date in the form and substance satisfactory to you you, as to the accuracy of the representations and warranties of the Company and Advisor set forth in Section 1A hereof as of the Selling Stockholders, respectively, herein at date hereof and as of such Time of Delivery, the Closing Date and as to the performance by the Company and the Selling Stockholders Advisor of all of their its respective obligations hereunder to be performed at or prior to such Time of Deliverythe Closing Date.
(l) The Company, the Operating Partnership and the Company Advisor shall have furnished the Underwriters and Underwriters' Counsel with such other certificates, opinions or caused to be furnished certificates other documents as they may have reasonably requested, including a letter from the Chief Financial Officer of the Company in a form reasonable acceptable to the matters Lead Manager scheduling the amounts set forth in subsections (a) of this Section and as to such other matters as you may reasonably requestfor the Company's funds from operations for the year ended December 31, 2003.
(pm) The Company If any of the conditions specified in this Section 7 shall not have furnished been fulfilled when and as required by this Agreement, or caused to be if any of the certificates, opinions, written statements or letters furnished to you at such Time of Delivery a certificate or to Underwriters' Counsel pursuant to this Section 7 shall not be satisfactory in form and substance to the Lead Manager and to Underwriters' Counsel, all obligations of the Executive Vice PresidentUnderwriters hereunder may be cancelled by the Lead Manager at, Chief Financial Officer or at any time prior to, the Closing Date and Treasurer the obligations of the Underwriters to purchase the Additional Shares may be cancelled by the Lead Manager at, or at any time prior to, the Additional Closing Date. Notice of such cancellation shall be given to the effect that:
(i) He is familiar with the internal accounting records of the CompanyCompany in writing or by telephone. Any such telephone notice shall be confirmed promptly thereafter in writing.
(ii) He has reviewed the “Recent Developments” section contained in both the Preliminary Prospectus and the Prospectus. The information presented in such Recent Developments section (A) has been prepared in good faith and based upon assumptions that he believes are reasonable and consistent with the operations of the Company and (B) is a fair estimate in all material respects of the Company’s total revenues and net income for the three months ended June 30, 2011 and has been derived from the Company’s accounting and/or financial records.
Appears in 1 contract
Conditions of Underwriters’ Obligations. The several obligations of the Underwriters hereunder, as hereunder are subject to the Shares to be delivered at each Time accuracy of Delivery, shall be subject, in their discretion, to the condition that all representations and warranties and other statements on the part of the Company Issuers on the date hereof and at the time of the Selling Stockholders herein are, at and as of such Time of Delivery, true and correctpurchase, the condition that performance by the Company and the Selling Stockholders shall have performed all Issuers of its and their obligations hereunder theretofore to be performed, and the following additional conditionsconditions precedent:
(a) The Company shall furnish to you at the time of purchase an opinion of Paul, Hastings, Xxxxxxxx & Xxxxxx, LLP, counsel for the Company, addressed to the Underwriters and dated the time of purchase in form and substance satisfactory to Xxxxxx Xxxxxx & Xxxxxxx, counsel for the Underwriters, stating that:
(i) the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware, with full corporate power and authority to own its properties and conduct its business as described in the Registration Statement and the Prospectus, to execute and deliver this Agreement and to issue, sell and deliver the Notes as herein contemplated;
(ii) all of the issued and outstanding shares of capital stock of each of the Corporate Subsidiaries have been duly authorized and validly issued and are fully paid and non-assessable and the partnership interests which the Company owns in the Partnership Subsidiary have been duly authorized and validly issued and are fully paid and non-assessable, and both the capital stock of the Corporate Subsidiaries and the partnership interests in the Partnership Subsidiary are owned by the Company or one or more of the Subsidiaries and, to the best knowledge of such counsel, free and clear of any pledge, lien, encumbrance, security interest, preemptive rights or other claim; except as described in the Registration Statement and the Prospectus and, to the best knowledge of such counsel, there are no outstanding rights, subscriptions, warrants, calls, options or other agreements of any kind with respect to the capital stock or the partnership interests of the Subsidiaries;
(iii) each of the Corporate Subsidiaries has been duly incorporated and the Partnership Subsidiary has been duly formed, and is validly existing as a corporation, in the case of the Corporate Subsidiaries, or as a limited partnership, in the case of the Partnership Subsidiary, in good standing under the laws of its respective jurisdiction of incorporation or formation, as the case may be, with full corporate or partnership power, as the case may be, and authority to own its respective properties and conduct its respective business as described in the Registration Statement and the Prospectus and to execute and deliver the Indenture and the Guarantees;
(iv) the Company and the Subsidiaries are duly qualified, and are in good standing, in each jurisdiction in which the nature of its business or its ownership or its leasing of property requires such qualification, except where the failure, individually or in the aggregate, to be so qualified could have a Material Adverse Effect;
(v) this Agreement has been duly authorized, executed and delivered by the Company and the Guarantors;
(vi) the Indenture and the First Supplemental Indenture have been duly authorized, executed and delivered by each of the Company and each of the Guarantors, and, assuming due authorization, execution and delivery by the Trustee, are legal, valid and binding agreements of each of the Company and each of the Guarantors enforceable in accordance with their terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or similar laws relating to or affecting creditors' rights generally and general principles of equity;
(vii) the Notes have been duly authorized by the Company and the Guarantees have been duly authorized by each of the Guarantors and, when executed and authenticated in accordance with the terms of the Indenture and delivered to and paid for by the Underwriters, will be legal, valid and binding obligations of the Company and the Guarantees will constitute legal, valid and binding obligations of each Guarantor, in each case enforceable in accordance with their terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or similar laws relating to or affecting creditors' rights generally and general principles of equity;
(viii) the Notes, Guarantees, the Indenture and the First Supplemental Indenture, conform in all material respects to the description thereof contained in the Registration Statement and Prospectus;
(ix) the Registration Statement and the Prospectus (except as to the financial statements and schedules and other financial and statistical data contained or incorporated by reference therein, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act;
(x) the Registration Statement has become effective under the Act and, to the best of such counsel's knowledge, no stop order proceedings with respect thereto are pending or threatened under the Act and any required filing of the Prospectus and any supplement thereto pursuant to Rule 424 under the Act has been made in the manner and within the time period required by such Rule 424;
(xi) no approval, authorization, consent or order of or filing with any national, state or local governmental or regulatory commission, board, body, authority or agency is required in connection with the issuance and sale of the Securities or the consummation by the Company of the transactions as contemplated hereby other than registration of the Securities under the Act (except such counsel need express no opinion as to any necessary qualification under the state securities or blue sky laws of the various jurisdictions in which the Securities are being offered by the Underwriters);
(xii) the execution, delivery and performance of this Agreement by the Company and the consummation by the Company of the transactions contemplated hereby do not and will not conflict with, or result in a breach of, or constitute a default under (nor constitute any event which with notice, lapse of time, or both, would constitute a breach of or default under), any provisions of the charter or by-laws of the Company or any of the Subsidiaries or under any provisions of any license, indenture, lease, mortgage, deed of trust, bank loan, credit agreement or other agreement or instrument known to such counsel to which the Company or any of the Subsidiaries is a party or by which any of them or their respective properties may be bound or affected, except any such breach or default as has been waived prior to the date hereof, or under any law, regulation or rule or any decree, judgment or order known to such counsel applicable to the Company or any of the Subsidiaries;
(xiii) to the best of such counsel's knowledge, there are no contracts, licenses, agreements, leases or documents of a character which are required to be filed as exhibits to the Registration Statement or to be summarized or described in the Prospectus which have not been so filed, summarized or described;
(xiv) to the best of such counsel's knowledge, there are no actions, suits, claims, investigations or proceedings pending, threatened or contemplated to which the Company or any of its Subsidiaries is subject or of which any of their respective properties is subject, at law or in equity, or before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which are required to be described in the Prospectus but are not so described;
(xv) the documents incorporated by reference in the Registration Statement and Prospectus, when they were filed (or, if an amendment with respect to any such document was filed when such amendment was filed) with the Commission, complied as to form in all material respects with the Act or the Exchange Act (except as to the financial statements and schedules and other financial and statistical data contained or incorporated by reference therein, as to which such counsel need express no opinion);
(xvi) the Company will not, upon consummation of the transactions contemplated by this Agreement, be an "investment company," or a "promoter" or "principal underwriter" for a "registered investment company," as such terms are defined in the Investment Company Act of 1940, as amended;
(xvii) the Indenture is qualified under the Trust Indenture Act;
(xviii) the Notes have been approved for listing on the New York Stock Exchange, subject only to notice of issuance at or prior to the time of purchase; and
(xix) such counsel has participated in conferences with officers and other representatives of the Company, representatives of the independent public accountants of the Company and representatives of the Underwriters at which the contents of the Registration Statement and Prospectus were discussed and, although such counsel is not passing upon and does not assume responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement or Prospectus (except as and to the extent stated in subparagraph (viii) above), on the basis of the foregoing nothing has come to the attention of such counsel that causes them to believe that the Registration Statement or any amendment thereto at the time such Registration Statement or amendment became effective contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus or any supplement thereto at the date of such Prospectus or such supplement, and at all times up to and including the time of purchase contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that such counsel need express no opinion with respect to the financial statements and schedules and other financial and statistical data derived from the internal financial records of the Issuers included in the Registration Statement or Prospectus).
(b) You shall have received from Deloitte & Touche LLP letters dated, respectively, the date of this Agreement and the time of purchase and addressed to the Underwriters (with reproduced copies for each of the Underwriters) in the forms approved by you.
(c) You shall have received at the time of purchase the favorable opinion of Xxxxxx Xxxxxx & Xxxxxxx, counsel for the Underwriters, dated the time of purchase, as to customary matters.
(d) No amendment or supplement to the Registration Statement or Prospectus, including documents deemed to be incorporated by reference therein, shall be filed to which you object in writing.
(e) The Prospectus shall have been timely filed with the Commission pursuant to Rule 424(b) under the Act within Act.
(f) Prior to the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(aof purchase, (i) hereof; all material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433 under the Act; if the Company has elected to rely upon Rule 462(b) under the Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m., Washington, D.C. time, on the date of this Agreement; no stop order suspending with respect to the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been under the Act or proceedings initiated under Section 8(d) or threatened by the Commission; no stop order suspending or preventing the use 8(e) of the Prospectus Act; (ii) the Registration Statement and all amendments thereto, or any Issuer Free Writing modifications thereof, if any, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and (iii) the Prospectus shall have been initiated not contain an untrue statement of a material fact or threatened by omit to state a material fact required to be stated therein or necessary to make the Commission; and all requests for additional information on statements therein, in the part light of the Commission shall have been complied with to your reasonable satisfaction;
(b) Xxxxx Xxxxx L.L.P.circumstances under which they are made, counsel for the Underwriters, shall have furnished to you such written opinion or opinions, dated such Time of Delivery, in form and substance reasonably satisfactory to you, with respect to such matters as you may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;
(c) Xxxxxx & Xxxxxx L.L.P., counsel for the Company, shall have furnished to you their written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex IInot misleading.
(d) Xxxxxxxx X. Xxxxx, General Counsel and Corporate Secretary of the Company, shall have furnished to you his written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex III.
(e) Xxxx Xxxxxxxxxx & Xxxxxxxxx LLP, special Indiana counsel for the Company, shall have furnished to you their written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex IV.
(f) Xxxxxx LLP, counsel for each of the Selling Stockholders, as indicated in Schedule IIA hereto, shall have furnished to you their written opinion with respect to each of the Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex V.
(g) Such local counsel Between the time of execution of this Agreement and the time of purchase (i) no material and unfavorable change, financial or otherwise (other than as you referred to in the Registration Statement and Prospectus), in the business, condition or prospects of the Company and its Subsidiaries taken as a whole shall reasonably require occur or become known and (ii) no transaction which is material and unfavorable to the Company shall have furnished to you their written opinion with respect to each been entered into by the Company or any of the foreign Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex VIits Subsidiaries.
(h) On the date of the Prospectus at a time prior to the execution of this AgreementThe Company will, at 9:30 a.m.the time of purchase, New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, UHY, LLP shall have furnished deliver to you a letter or letters, dated the respective dates certificate of delivery thereof, in form and substance satisfactory to you;
(i) On the date two of the Prospectus at a time prior its executive officers to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, Flackman Xxxxxxx & Xxxxxx, P.A. shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) Neither the Company nor the Subsidiaries shall have sustained since the date of the latest audited financial statements included in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, other than as set forth or contemplated in the Pricing Prospectus and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or the Subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and the Subsidiaries, other than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Pricing Prospectus;
(k) On or after the Applicable Time, there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the NYSE; (ii) a suspension or material limitation in trading in the Company’s securities on the NYSE; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Texas State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus;
(l) The Shares to be sold at such Time of Delivery shall have been duly admitted for trading and quotation on the NYSE;
(m) The Company shall have obtained and delivered to the Underwriters executed copies of a lock-up agreement from each of its directors and executive officers, the Selling Stockholders and each other stockholder identified on Schedule IV hereto, in the form attached as Annex I hereto;
(n) The Company shall have complied with the provisions of Section 5(c) hereof with respect to the furnishing of prospectuses on the New York Business Day next succeeding the date of this Agreement; and
(o) The Company and the Selling Stockholders shall have furnished or caused to be furnished to you at such Time of Delivery certificates of officers of the Company and of the Selling Stockholders, respectively, satisfactory to you as to the accuracy of that the representations and warranties of the Company as set forth in this Agreement are true and the Selling Stockholders, respectively, herein at and correct as of each such Time of Deliverydate, as to that the performance by the Company and the Selling Stockholders of all Issuers have performed such of their respective obligations hereunder under this Agreement as are to be performed at or prior to such Time before the time of Deliverypurchase and that the conditions set forth in paragraphs (e), (f) and the (k) of this Section 6 have been met.
(i) The Company shall have furnished or caused to be furnished you such other documents and certificates as to the matters set forth accuracy and completeness of any statement in subsections (a) the Registration Statement and the Prospectus as of this Section and as to such other matters the time of purchase as you may reasonably request.
(pj) The Company Notes shall have furnished been approved for listing on the New York Stock Exchange, subject only to notice of issuance at or caused to be furnished to you at such Time of Delivery a certificate of the Executive Vice President, Chief Financial Officer and Treasurer prior to the effect that:time of purchase.
(k) Between the time of execution of this Agreement and the time of purchase, there shall not have occurred any downgrading, nor shall any notice or announcement have been given or made of (i) He is familiar with the internal accounting records of the Company.
any intended or potential downgrading or (ii) He has reviewed any review or possible change that does not indicate an improvement, in the “Recent Developments” section contained in both the Preliminary Prospectus and the Prospectus. The information presented in such Recent Developments section (A) has been prepared in good faith and based upon assumptions that he believes are reasonable and consistent with the operations rating accorded any securities of or guaranteed by the Company and (Bor any Subsidiary by any "nationally recognized statistical rating organization," as that term is defined in Rule 436(g)(2) is a fair estimate in all material respects of under the Company’s total revenues and net income for the three months ended June 30, 2011 and has been derived from the Company’s accounting and/or financial recordsAct.
Appears in 1 contract
Conditions of Underwriters’ Obligations. The several obligations of the Underwriters hereunder, as to purchase Shares pursuant to this Agreement are subject to the Shares to be delivered at each Time accuracy of Delivery, shall be subject, in their discretion, to the condition that all representations and warranties and other statements of the Company and the Operating Partnership herein contained, to the accuracy of the Selling Stockholders herein arestatements of the Company’s officers, at on behalf of the Company as the sole member of GP Trust in its capacity as general partner of the Operating Partnership and as on behalf of such Time the Company and GP Trust, made in any certificate pursuant to the provisions hereof, to the performance by each of Delivery, true and correct, the condition that the Company and the Selling Stockholders shall have performed Operating Partnership of all of its covenants and their other obligations hereunder theretofore to be performedhereunder, and to the following additional further conditions:.
(a) The At the Time of Sale or such other time as may be agreed between the parties hereto, the Company and the Operating Partnership shall have furnished to the Underwriters a letter substantially in the form of Exhibit A hereto from each of the executive officers and directors of the Company addressed to the Underwriters.
(b) On the Closing Date, (i) the Registration Statement shall have been filed by the Company and the Operating Partnership with the Commission not earlier than three years prior to the date hereof and became effective upon filing in accordance with Rule 462(e) of the 1933 Act Regulations and no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated or threatened by the Commission, and any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of counsel to the Underwriters, and no notice of objection of the Commission to the use of such form of registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) of the 1933 Act Regulations has been received by the Company or the Operating Partnership, (ii) each preliminary prospectus and the Prospectus shall have been filed with the Commission pursuant to in the manner and within the time period required by Rule 424(b) under the Act within the applicable time period prescribed for without reliance on Rule 424(b)(8) (or a post-effective amendment providing such filing by the rules information shall have been filed and regulations under the Act and become effective in accordance with Section 5(athe requirements of Rule 430B), and no order preventing or suspending the use of any preliminary prospectus or the Prospectus shall have been issued by the Commission or the securities authority of any jurisdiction, (iii) hereof; all any material required to be filed by the Company pursuant to Rule 433(d) under of the 1933 Act Regulations shall have been filed with the Commission within the applicable time period periods prescribed for such filings under such Rule 433, (iv) the Company shall have paid the required Commission filing fees relating to the Firm Shares within the time period required by Rule 433 under the Act; if the Company has elected to rely upon Rule 462(b456(b)(1)(i) under the Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m., Washington, D.C. time, on the date of this Agreement; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued 1933 Act Regulations without regard to the proviso therein and no proceeding for that purpose shall have been initiated or threatened by the Commission; no stop order suspending or preventing the use otherwise in accordance with Rules 456(b) and 457(r) of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction;
(b) Xxxxx Xxxxx L.L.P.1933 Act Regulations and, counsel for the Underwritersif applicable, shall have furnished to you such written opinion or opinions, dated such Time updated the “Calculation of Delivery, Registration Fee” table in form and substance reasonably satisfactory to you, accordance with respect to such matters as you may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;
(cRule 456(b)(1)(ii) Xxxxxx & Xxxxxx L.L.P., counsel for the Company, shall have furnished to you their written opinion, dated such Time of Delivery, either in form and substance satisfactory to you, to the effect set forth on Annex II.
(d) Xxxxxxxx X. Xxxxx, General Counsel and Corporate Secretary of the Company, shall have furnished to you his written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex III.
(e) Xxxx Xxxxxxxxxx & Xxxxxxxxx LLP, special Indiana counsel for the Company, shall have furnished to you their written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex IV.
(f) Xxxxxx LLP, counsel for each of the Selling Stockholders, as indicated in Schedule IIA hereto, shall have furnished to you their written opinion with respect to each of the Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex V.
(g) Such local counsel as you shall reasonably require shall have furnished to you their written opinion with respect to each of the foreign Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex VI.
(h) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement or on the cover page of a prospectus filed subsequent pursuant to Rule 424(b), (v) the rating assigned by any nationally recognized statistical rating organization to the date securities of the Company or the Operating Partnership as of the execution of this Agreement shall not have been lowered or withdrawn since such execution nor shall such rating organization have publicly announced or otherwise notified the Company since such execution that it has under surveillance or review, with possible negative implications, its rating of the securities of the Company or the Operating Partnership, and also (vi) there shall not have come to your attention any facts that would cause you to believe that the Disclosure Package or the Prospectus, at the time it was, or was required to be, delivered or made available to purchasers of the Shares, included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances existing at such time, not misleading.
(c) On the Closing Date, you shall have received the favorable opinion, dated as of the Closing Date, (i) of Xxxxxx & Xxxxxxx LLP, counsel for the Operating Partnership and the Company, in form and substance of Exhibit B hereto and reasonably satisfactory to counsel for the Underwriters and (ii) of Xxxxxx & Xxxxxxx LLP, counsel for the Operating Partnership and the Company with respect to certain tax matters, in form and substance of Exhibit D hereto and reasonably satisfactory to counsel for the Underwriters.
(d) On the Closing Date, you shall have received the favorable opinion, dated as of the Closing Date, of Vernon, Vernon, Wooten, Brown, Xxxxxxx & Xxxxxxx, P.A., counsel for the Company and the Operating Partnership, in form and substance reasonably of Exhibit C hereto and reasonably satisfactory to counsel for the Underwriters.
(e) On the Closing Date, you shall have received the favorable opinion, dated as of the Closing Date, of Xxxxxxxx Chance US LLP, counsel for the Underwriters, with respect to certain matters reasonably requested by the Underwriters.
(f) In addition to their opinions required by subsections (c), (d) and (e), respectively, of this Section, Xxxxxx & Xxxxxxx LLP, Vernon, Vernon, Wooten, Brown, Xxxxxxx & Xxxxxxx, P.A. and Xxxxxxxx Chance US LLP shall each additionally state (which may be in a letter separate from their opinion letter) to the effect that nothing has come to their attention that would lead them to believe that (i) each part of the Registration Statement (except for financial statements, supporting schedules and other financial data included or incorporated by reference therein or omitted therefrom, as to which they need not express any belief), at the most recent time when such part became effective under the 1933 Act and the 1933 Act Regulations, or as of the Time of DeliverySale, UHYcontained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the Prospectus or any amendment or supplement thereto (except for financial statements, supporting schedules and other financial data included or incorporated by reference therein or omitted therefrom, as to which they need not express any belief), at the time the Prospectus was issued, at the time any such amendment or supplement thereto was issued, or as of the Closing Date or any Option Closing Date, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and (iii) the Disclosure Package (except for financial statements, supporting schedules and other financial data included or incorporated by reference therein or omitted therefrom, as to which they need not express any belief), as of the Applicable Time, included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions required by subsections (c), (d) and (e), respectively, of this Section, Xxxxxx & Xxxxxxx LLP, Vernon, Vernon, Wooten, Brown, Xxxxxxx & Xxxxxxx, P.A. and Xxxxxxxx Chance US LLP shall have furnished may rely, as to you a letter all matters of fact, upon certificates and written statements of officers and employees of and accountants for the Operating Partnership and the Company and upon certificates of appropriate government officials in such jurisdiction, and Xxxxxx & Xxxxxxx LLP and Xxxxxxxx Chance US LLP may additionally rely, as to matters involving the laws of the State of North Carolina, upon the opinion of Vernon, Vernon, Wooten, Brown, Xxxxxxx & Xxxxxxx, P.A. (or letters, dated other counsel reasonably satisfactory to counsel for the respective dates of delivery thereof, Underwriters) in form and substance satisfactory to you;counsel for the Underwriters.
(ig) On the date of the Prospectus at a time prior to the execution of this AgreementClosing Date, at 9:30 a.m.there shall not have been, New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to since the date of this Agreement and also at each Time of Delivery, Flackman Xxxxxxx & Xxxxxx, P.A. shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) Neither the Company nor the Subsidiaries shall have sustained since the date of the latest audited financial statements included in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, other than as set forth or contemplated in the Pricing Prospectus and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall Disclosure Package or the Prospectus, any Material Adverse Change, whether or not have been any change arising in the capital stock or long-term debt ordinary course of business; no proceedings shall be pending or, to the knowledge of the Company or the Subsidiaries or any change, or any development involving a prospective change, in or affecting Operating Partnership threatened against the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and the Subsidiaries, other than as set forth or contemplated in the Pricing ProspectusCompany, the effect Operating Partnership, any of which, in any such case described in clause (i) their subsidiaries or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Pricing Prospectus;
(k) On or after the Applicable Time, there shall not have occurred any of the following: (i) a suspension Centers before or material limitation in trading in securities generally on by any Federal, state or other commission, board or administrative agency wherein an unfavorable decision, ruling or finding would be reasonably expected and which would materially and adversely affect the NYSE; (ii) a suspension business, property, financial condition or material limitation in trading in income of the Company’s securities on , the NYSEOperating Partnership and their subsidiaries, considered as one enterprise; (iii) and you shall have received a general moratorium on commercial banking activities declared by either Federal certificate of the President or New York or Texas State authorities Chief Executive Officer or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus;
(l) The Shares to be sold at such Time of Delivery shall have been duly admitted for trading and quotation on the NYSE;
(m) The Company shall have obtained and delivered to the Underwriters executed copies of a lock-up agreement from each of its directors and executive officers, the Selling Stockholders and each other stockholder identified on Schedule IV hereto, in the form attached as Annex I hereto;
(n) The Company shall have complied with the provisions of Section 5(c) hereof with respect to the furnishing of prospectuses on the New York Business Day next succeeding the date of this Agreement; and
(o) The Company and the Selling Stockholders shall have furnished or caused to be furnished to you at such Time of Delivery certificates of officers Vice President of the Company and of the Selling Stockholderschief financial or chief accounting officer of the Company in such capacity, respectivelyand of the general partner of the Operating Partnership, dated as of the Closing Date, to the effect that (i) there has been no such Material Adverse Change or proceedings and (ii) the representations and warranties in Section 1 are true and correct as of the Closing Date.
(h) At the time of execution of this Agreement, you shall have received a letter dated such date from PricewaterhouseCoopers LLP with respect to both the Disclosure Package and the Prospectus, in form and substance satisfactory to you and PricewaterhouseCoopers LLP.
(i) On the Closing Date, you shall have received (1) a letter, dated as of the Closing Date, from PricewaterhouseCoopers LLP with respect to the accuracy Prospectus, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (h) of this Section, except that the “specified date” referred to shall be a date not more than three business days prior to the Closing Date.
(j) If applicable, at the time of the execution of this Agreement, you shall have received a letter dated such date from such independent accountants that have prepared any historical financial statements included in or incorporated by reference into the Registration Statement, the Disclosure Package and the Prospectus which financial statements relate to properties or assets acquired or to be acquired by the Operating Partnership or the Company, or any of their Subsidiaries, in form and substance satisfactory to the Underwriters, to the effect that (i) they are independent accountants with respect to the Operating Partnership or the Company, as the case may be, and such properties or assets acquired by the Operating Partnership or the Company, as the case may be, within the meaning of the 1933 Act and the 1933 Act Regulations; and (ii) it is their opinion that the historical financial statements for such properties or assets that have been audited by them and covered by their opinions included or incorporated by reference into the Registration Statement, the Disclosure Package and the Prospectus comply in form in all material respects with the applicable accounting requirements of the 1933 Act and the 1933 Act Regulations.
(k) The Company shall have completed all required filings with the NYSE and other necessary actions in order to cause the Shares to be listed and admitted and authorized for trading on the NYSE, subject to notice of issuance.
(l) In the event that the Underwriters exercise their option provided in this Agreement as set forth in Section 2(b) hereof to purchase all or any portion of the Option Shares, the representations and warranties of the Company and the Selling Stockholders, respectively, Operating Partnership contained herein at and as of such Time of Delivery, as to the performance statements in any certificates furnished by the Company and the Selling Stockholders Operating Partnership hereunder shall be true and correct as of all the Option Closing Date and, at the Option Closing Date, you shall have received:
(1) A certificate, dated the Option Closing Date, of their respective obligations hereunder the President and Chief Executive Officer or a Vice President of the Company and of the chief financial or chief accounting officer of the Company on behalf of the Company and on behalf of the Company in its capacity as general partner of the Operating Partnership confirming that the certificate delivered at the Closing Date pursuant to Section 5(g) hereof remains true and correct as of the Option Closing Date.
(2) The favorable opinions of Xxxxxx & Xxxxxxx LLP, counsel for the Operating Partnership and the Company, in form and substance satisfactory to counsel for the Underwriters, dated the Option Closing Date, relating to, among other things, the Option Shares to be performed purchased on the Option Closing Date and otherwise to the same effect as the opinions or separate letter, as applicable, required by Sections 5(c) and 5(f) hereof.
(3) The favorable opinion of Vernon, Vernon, Wooten, Brown, Xxxxxxx & Xxxxxxx, P.A., counsel for the Company and the Operating Partnership in form and substance reasonably satisfactory to counsel for the Underwriters, dated the Option Closing Date, relating to the Option Shares and otherwise to the same effect as the opinion or separate letter, as applicable, required by Sections 5(d) and 5(f) hereof.
(4) The favorable opinion of Xxxxxxxx Chance US LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Shares and otherwise to the same effect as the opinion or separate letter, as applicable, required by Sections 5(e) and 5(f) hereof.
(m) A letter from PricewaterhouseCoopers LLP with respect to the Prospectus, in form and substance satisfactory to you and PricewaterhouseCoopers LLP and dated the Option Closing Date, substantially the same in form and substance as the letter furnished to you pursuant to Section 5(i) hereof, except that the “specified date” in the letter furnished pursuant to this Section 5(m) shall be a date not more than three days prior to the Option Closing Date.
(n) On the Closing Date and any Option Closing Date are purchased, counsel for the Underwriters shall have been furnished with such certificates, documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the issuance and sale of the Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company and the Operating Partnership in connection with the issuance and sale of the Shares, as herein contemplated, shall be satisfactory in form and substance to you and counsel for the Underwriters. If any condition specified in this Section shall not have been fulfilled when and as required to be fulfilled, this Agreement may be terminated by you by notice to the Company or the Operating Partnership at any time at or prior to such Time of Deliverythe Closing Date or the Option Closing Date, as the case may be, and the Company such termination shall have furnished or caused be without liability of any party to be furnished certificates any other party except as to the matters set forth provided in subsections (a) of this Section and as to such other matters as you may reasonably request4 hereof.
(p) The Company shall have furnished or caused to be furnished to you at such Time of Delivery a certificate of the Executive Vice President, Chief Financial Officer and Treasurer to the effect that:
(i) He is familiar with the internal accounting records of the Company.
(ii) He has reviewed the “Recent Developments” section contained in both the Preliminary Prospectus and the Prospectus. The information presented in such Recent Developments section (A) has been prepared in good faith and based upon assumptions that he believes are reasonable and consistent with the operations of the Company and (B) is a fair estimate in all material respects of the Company’s total revenues and net income for the three months ended June 30, 2011 and has been derived from the Company’s accounting and/or financial records.
Appears in 1 contract
Sources: Underwriting Agreement (Tanger Properties LTD Partnership /Nc/)
Conditions of Underwriters’ Obligations. The several obligations of the Underwriters hereunderto purchase and pay for the Firm Shares and the Additional Shares, as to the Shares to be delivered at each Time of Deliveryprovided herein, shall be subject, in their discretion, subject to the condition that all accuracy of the representations and warranties and other statements of the Company and the Manager herein contained, as of the Selling Stockholders herein are, at date hereof and as of such Time the Closing Date (for purposes of Deliverythis Section 8, true “Closing Date” shall refer to the Closing Date for the Firm Shares and correctany Additional Closing Date, if different, for the condition that Additional Shares), and to the performance by each of the Company and the Selling Stockholders shall have performed Manager of all of its and their obligations hereunder theretofore to be performedhereunder, and to each of the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in a timely fashion in accordance with Section 5(a) hereof; all material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433 under the Act; if the Company has elected to rely upon Rule 462(b) under the Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m., Washington, D.C. time, on the date of this Agreement; no stop order suspending the effectiveness of the Registration Statement or any part thereof post-effective amendment thereto, and no stop order suspending or preventing the use of any Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus, shall have been issued by the Commission and no proceeding for that purpose proceedings therefor shall have been initiated or threatened by the Commission; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction;; if the Company has elected to rely on Rule 462(b) under the Securities Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m. (Washington, D.C. time) on the date of this Agreement; and all necessary regulatory or stock exchange approvals shall have been received.
(b) Xxxxx Xxxxx L.L.P.At the Closing Date you shall have received the written opinions of Hunton & Xxxxxxxx LLP, counsel for the Underwriters, shall have furnished to you such written opinion or opinions, dated such Time of Delivery, in form Company and substance reasonably satisfactory to you, with respect to such matters as you may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;
(c) Xxxxxx & Xxxxxx L.L.P., counsel for the Company, shall have furnished to you their written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex II.
(d) Xxxxxxxx X. Xxxxx, General Counsel and Corporate Secretary of the Company, shall have furnished to you his written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex III.
(e) Xxxx Xxxxxxxxxx & Xxxxxxxxx LLP, special Indiana counsel for the Company, shall have furnished to you their written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex IV.
(f) Xxxxxx LLP, counsel for each of the Selling Stockholders, as indicated in Schedule IIA hereto, shall have furnished to you their written opinion with respect to each of the Selling StockholdersManager, dated the First Time of DeliveryClosing Date and addressed to the Underwriters, in form and substance satisfactory to you, to the effect set forth in Annex V.I hereto.
(gc) Such local counsel as At the Closing Date, you shall reasonably require shall have furnished to you their received the written opinion with respect to each of the foreign Selling StockholdersUnderwriters’ Counsel, dated the First Time of DeliveryClosing Date and addressed to the Underwriters, in form and substance satisfactory to you, with respect to the effect set forth in Annex VI.
(h) On the date issuance and sale of the Prospectus at a time prior to the execution of this AgreementShares, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to Statement, the date of this Agreement Pricing Disclosure Package, the Prospectus and also at each Time of Deliverysuch other matters as you may require, UHY, LLP and the Company and the Manager shall have furnished to Underwriters’ Counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(d) At the Closing Date you shall have received a letter or letterscertificate of the Chief Executive Officer and Chief Financial Officer of the Company, dated the respective dates of delivery thereofClosing Date, in form and substance satisfactory to you;
(i) On , as to the accuracy of the representations and warranties of the Company set forth in Section 1 hereof as of the date hereof and as of the Prospectus Closing Date, as to the performance by the Company of all of its obligations hereunder to be performed at a time or prior to the execution Closing Date, as to the matters set forth in subsections (a) and (g) of this AgreementSection 8, at 9:30 a.m., New York City time, on and as to such other matters as you may reasonably request.
(e) At the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, Flackman Xxxxxxx & Xxxxxx, P.A. Closing Date you shall have furnished to you received a letter or letterscertificate of the Chief Executive Officer and Chief Financial Officer of the Manager, dated the respective dates of delivery thereofClosing Date, in form and substance satisfactory to you;, as to the accuracy of the representations and warranties of the of the Manager set forth in Section 2 hereof as of the date hereof and as of the Closing Date, as to the performance by the Manager of all of its obligations hereunder to be performed at or prior to the Closing Date, and as to such other matters as you may reasonably request.
(f) At the time this Agreement is executed and at the Closing Date, you shall have received a comfort letter, from Deloitte & Touche LLP, independent public accountants for the Company, dated, respectively, as of the date of this Agreement and as of the Closing Date, addressed to the Underwriters and in form and substance satisfactory to the Underwriters and Underwriters’ Counsel.
(g) (i) Neither None of the Company nor Company, its Subsidiaries or the Subsidiaries Manager shall have sustained sustained, since the date of the latest audited financial statements included in the Pricing Prospectus Prospectus, any material loss or interference with its business or properties from fire, explosion, flood flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or court any legal or governmental action, order or decreeproceeding, other than as set forth or contemplated in the Pricing Prospectus (exclusive of any supplement thereto); and (ii) since subsequent to the respective dates as of which information is given in the Registration Statement (exclusive of any amendment thereto subsequent to the date hereof) and the Pricing Prospectus (exclusive of any supplement thereto), there shall not have been (A) any change in the capital stock or long-term or short-term debt of the Company or the Subsidiaries any Subsidiary, or (B) any change, change or any development involving a prospective change, whether or not arising from transactions in the ordinary course of business, in or affecting the business, general affairs, management, condition (financial positionor otherwise), results of operations or stockholders’ equity or results of operations of the Company and the Subsidiaries, other than in each case, individually or taken as set forth or contemplated in the Pricing Prospectusa whole, the effect of which, in any such case described in clause (i) or (ii)above, is is, in the judgment of the Representatives Lead Managers, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery Offering on the terms and in the manner contemplated in the Pricing Prospectus;
Prospectus (k) On or after the Applicable Time, there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the NYSE; (ii) a suspension or material limitation in trading in the Company’s securities on the NYSE; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Texas State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect exclusive of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus;supplement).
(lh) The Shares to be sold at such Time of Delivery You shall have been received a duly admitted for trading and quotation on the NYSE;
(m) The Company shall have obtained and delivered to the Underwriters executed copies of a lock-up agreement from each of its directors and executive officers, the Selling Stockholders and each other stockholder identified on Schedule IV hereto, in the form attached as of Annex I II hereto from (i) each of the Company’s executive officers and directors, (ii) each Directed Share Participant who purchases Reserved Shares for a purchase price of $100,000 or more, and (iii) to the extent such person or entity holds Relevant Securities, each of the Manager’s officers, directors, managers and members of its investment committee, Sharpridge Capital Management, L.P. and its general partner, officers, and directors and Cypress Advisors, Inc. and its partners, officers, and directors. Each of aforementioned persons and entities are listed in Schedule II hereto;.
(ni) The Company At the Closing Date, the Shares shall have complied with been approved for listing upon notice of issuance on the provisions of Section 5(cNYSE.
(j) hereof At the Closing Date, the FINRA shall have confirmed that it has not raised any objection with respect to the furnishing fairness and reasonableness of prospectuses on the New York Business Day next succeeding underwriting terms and arrangements for the date of this Agreement; andOffering.
(ok) The Company and the Selling Stockholders Manager shall have furnished the Underwriters and Underwriters’ Counsel with such other certificates, opinions or caused to be other documents as they may have reasonably requested. If any of the conditions specified in this Section 8 shall not have been fulfilled when and as required by this Agreement, or if any of the certificates, opinions, written statements or letters furnished to you at such Time of Delivery certificates of officers or to Underwriters’ Counsel pursuant to this Section 8 shall not be satisfactory in form and substance to the Lead Managers and to Underwriters’ Counsel, all obligations of the Company Underwriters hereunder may be cancelled by the Lead Managers at, or at any time prior to, the Closing Date and the obligations of the Selling StockholdersUnderwriters to purchase the Additional Shares may be cancelled by the Lead Managers at, respectivelyor at any time prior to, satisfactory to you as the Additional Closing Date. Notice of such cancellation shall be given to the accuracy of the representations and warranties of the Company and the Selling Stockholders, respectively, herein at and as of in writing or by telephone. Any such Time of Delivery, as to the performance by the Company and the Selling Stockholders of all of their respective obligations hereunder to telephone notice shall be performed at or prior to such Time of Delivery, and the Company shall have furnished or caused to be furnished certificates as to the matters set forth confirmed promptly thereafter in subsections (a) of this Section and as to such other matters as you may reasonably requestwriting.
(p) The Company shall have furnished or caused to be furnished to you at such Time of Delivery a certificate of the Executive Vice President, Chief Financial Officer and Treasurer to the effect that:
(i) He is familiar with the internal accounting records of the Company.
(ii) He has reviewed the “Recent Developments” section contained in both the Preliminary Prospectus and the Prospectus. The information presented in such Recent Developments section (A) has been prepared in good faith and based upon assumptions that he believes are reasonable and consistent with the operations of the Company and (B) is a fair estimate in all material respects of the Company’s total revenues and net income for the three months ended June 30, 2011 and has been derived from the Company’s accounting and/or financial records.
Appears in 1 contract
Sources: Underwriting Agreement (Cypress Sharpridge Investments, Inc.)
Conditions of Underwriters’ Obligations. The obligations of the Underwriters hereunderto purchase and pay for the Notes, as to the Shares to be delivered at each Time of Deliveryprovided herein, shall be subject, in their discretion, subject to the condition that all accuracy of the representations and warranties and other statements of the Company and the Guarantors herein contained, as of the Selling Stockholders herein are, at date hereof and as of such Time the Closing Date, to the absence from any certificates, opinions, written statements or letters furnished to you or to Underwriters’ Counsel pursuant to this Section 6 of Deliveryany misstatement or omission, true and correct, to the condition that performance by the Company and the Selling Stockholders shall have performed all of its and their obligations hereunder theretofore to be performedhereunder, and to each of the following additional conditions:
(a) The All necessary regulatory or stock exchange approvals shall have been received not later than 5:30 P.M., New York time, on the date of this Agreement, or at such later time and date as shall have been consented to in writing by Xxxxxx Brothers; the Registration Statement shall have become, and shall remain, effective on the date of this Agreement and through the Closing Date, the Prospectus shall have been filed with the Commission in a timely fashion in accordance with Section 4(a) hereof and a form of the Prospectus containing information relating to the description of the Notes and the method of distribution and similar matters shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by period; and, at or prior to the rules and regulations under the Act and in accordance with Section 5(a) hereof; all material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433 under the Act; if the Company has elected to rely upon Rule 462(b) under the Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m., Washington, D.C. time, on the date of this Agreement; Closing Date no stop order suspending the effectiveness of the Registration Statement or any part post-effective amendment thereof shall have been issued and no proceeding for that purpose proceedings therefor shall have been initiated or threatened by the Commission; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction;.
(b) Xxxxx Xxxxx L.L.P., counsel for At the Underwriters, shall have furnished to Closing Date you such written opinion or opinions, dated such Time of Delivery, in form and substance reasonably satisfactory to you, with respect to such matters as you may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;
(c) Xxxxxx the favorable written opinion of Irell & Xxxxxx L.L.P.Xxxxxxx LLP, counsel for the Company, dated the Closing Date addressed to the Underwriters substantially in the form attached hereto as Annex I.
(c) At the Closing Date you shall have furnished to you their received the favorable written opinionopinion of Xxxxxxx Xxxxxxxx, Nevada counsel for the Company, dated such Time of Delivery, in form and substance satisfactory to you, the Closing Date addressed to the effect set forth on Underwriters substantially in the form attached hereto as Annex II.
(d) Xxxxxxxx X. XxxxxAt the Closing Date you shall have received the favorable written opinion of Xxxxxxx Xxxxxx Winter & Stennis, General Counsel and Corporate Secretary of P.A., Mississippi counsel for the Company, shall have furnished to you his written opinion, dated such Time of Delivery, in form and substance satisfactory to you, the Closing Date addressed to the effect set forth on Underwriters substantially in the form attached hereto as Annex III.
(e) Xxxx Xxxxxxxxxx At the Closing Date you shall have received the favorable written opinion of Xxxxx & Xxxxxxxxx LLPXxxxxxx, special Indiana counsel for the Company, shall have furnished to you their written opinion, dated such Time of Delivery, in form and substance satisfactory to you, the Closing Date addressed to the effect set forth on Underwriters substantially in the form attached hereto as Annex IV.
(f) At the Closing Date you shall have received the favorable written opinion of Stone Xxxxxx LLPXxxxxxx Xxxxxxxx L.L.C., Louisiana counsel for each of the Selling Stockholders, as indicated in Schedule IIA hereto, shall have furnished to you their written opinion with respect to each of the Selling StockholdersCompany, dated the First Time of Delivery, in form and substance satisfactory to you, Closing Date addressed to the effect set forth Underwriters substantially in the form attached hereto as Annex V.
(g) Such local counsel as At the Closing Date you shall reasonably require shall have furnished to you their received the favorable written opinion with respect to each of Briol & Associates, PLLC, Minnesota counsel for the foreign Selling StockholdersCompany, dated the First Time of Delivery, in form and substance satisfactory to you, Closing Date addressed to the effect set forth Underwriters substantially in the form attached hereto as Annex VI.
(h) On At the date Closing Date you shall have received the favorable written opinion of Xxxxxxx & Xxxx, X.X., Missouri counsel for the Company, dated the Closing Date addressed to the Underwriters substantially in the form attached hereto as Annex VII.
(i) All proceedings taken in connection with the sale of the Prospectus at Notes as herein contemplated shall be reasonably satisfactory in form and substance to Xxxxxx Brothers and to Underwriters’ Counsel, and the Underwriters shall have received from Underwriters’ Counsel a time prior favorable written opinion, dated as of the Closing Date, with respect to the execution issuance and sale of this Agreementthe Notes, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to and the date of this Agreement Prospectus and also at each Time of Deliverysuch other related matters as Xxxxxx Brothers may reasonably require, UHY, LLP and the Company shall have furnished to Underwriters’ Counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(j) At the Closing Date you shall have received a letter or letterscertificate of the Chief Executive Officer and Chief Financial Officer of the Company, dated the respective dates of delivery thereof, in form and substance satisfactory Closing Date to you;
the effect that (i) On the condition set forth in subsection (a) of this Section 6 has been satisfied, (ii) as of the date hereof and as of the Prospectus at a time prior to Closing Date, the execution representations and warranties of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, Flackman Xxxxxxx & Xxxxxx, P.A. shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) Neither the Company nor and the Subsidiaries shall Guarantors set forth in Section 1 hereof are accurate, (iii) as of the Closing Date all agreements, conditions and obligations of the Company and the Guarantors to be performed or complied with hereunder on or prior thereto have sustained been duly performed or complied with, (iv) since the date of the latest audited financial statements included in the Pricing Prospectus Prospectus, the Company and the Subsidiaries, taken as a whole, have not sustained any material loss or interference with its business their respective businesses or properties from fire, explosionflood, flood hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or court any legal or governmental actionproceeding, (v) no stop order suspending the effectiveness of the Registration Statement or decree, other than as set forth any post-effective amendment thereof has been issued and no proceedings therefor have been initiated or contemplated in threatened by the Pricing Prospectus Commission and (iivi) since subsequent to the respective dates as of which information is given in the Pricing Registration Statement and the Prospectus there has not been any material adverse change or any development involving a prospective material adverse change, whether or not arising from transactions in the ordinary course of business, in or affecting (x) the business, condition (financial or otherwise), results of operations, stockholders’ equity, properties or prospects of the Company and the Subsidiaries, taken as a whole; (y) the long-term debt or capital stock of the Company and its Subsidiaries, taken as a whole; or (z) the Offering, the consummation of any of the other transactions contemplated by this Agreement or the consummation of any material transaction contemplated by the Registration Statement and the Prospectus and (vii) as of the Closing Date, the Registration Statement and Prospectus do not include any untrue statement of a material fact and do not omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading.
(k) At the time this Agreement is executed and at the Closing Date, you shall have received a comfort letter, from Deloitte & Touche LLP, independent public accountants for the Company, dated, respectively, as of the date of this Agreement and as of the Closing Date addressed to the Underwriters and in form and substance reasonably satisfactory to the Underwriters and Underwriters’ Counsel.
(l) At the time this Agreement is executed and at the Closing Date, you shall have received a letter, from Deloitte & Touche LLP, dated, respectively, as of the date of this Agreement and as of the Closing Date addressed to the Underwriters and in form and substance reasonably satisfactory to the Underwriters and Underwriters’ Counsel, stating that nothing caused them to believe that the audited pro forma information of the Company included in the Registration Statement does not comply as to form with the applicable accounting requirements of Rule 11-02 of Regulation S-X promulgated under the Securities Act or that the pro forma adjustments have not been applied properly to the historical amounts in the compilation of such statements.
(m) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been any change in the capital stock or long-term debt of the Company or any of the Subsidiaries or any change, change or any development involving a prospective change, whether or not arising from transactions in the ordinary course of business, in the business, condition (financial or affecting the general affairsotherwise), management, financial positionresults of operations, stockholders’ equity equity, properties or results of operations prospects of the Company and the Subsidiaries, taken as a whole, including but not limited to the occurrence of any fire, flood, storm, explosion, accident or other than as set forth calamity at any of the properties owned or contemplated in leased by the Pricing ProspectusCompany or any of its Subsidiaries, the effect of which, in any such case described in clause (i) or (ii)above, is is, in the reasonable judgment of the Representatives Xxxxxx Brothers, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery Offering on the terms and in the manner contemplated in the Pricing Prospectus;
Prospectus (k) On or after the Applicable Time, there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the NYSE; (ii) a suspension or material limitation in trading in the Company’s securities on the NYSE; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Texas State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence exclusive of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus;
(l) The Shares to be sold at such Time of Delivery shall have been duly admitted for trading and quotation on the NYSE;
(m) The Company shall have obtained and delivered to the Underwriters executed copies of a lock-up agreement from each of its directors and executive officers, the Selling Stockholders and each other stockholder identified on Schedule IV hereto, in the form attached as Annex I hereto;supplement).
(n) On or prior to the Closing Date, The Depository Trust Company shall have complied with accepted the provisions of Section 5(c) hereof with respect to the furnishing of prospectuses on the New York Business Day next succeeding the date of this Agreement; andNotes for clearance.
(o) The Company and the Selling Stockholders shall have furnished or caused to be furnished to you at such Time of Delivery certificates of officers of the Company and of the Selling Stockholders, respectively, satisfactory to you as to the accuracy of the representations and warranties of the Company and the Selling Stockholders, respectively, herein at and as of such Time of Delivery, as to the performance by the Company and the Selling Stockholders of all of their respective obligations hereunder to be performed at On or prior to such Time of Deliverythe Closing Date, and the Company you shall have furnished or caused to be furnished certificates as to received the matters set forth in subsections (a) of this Section and as to such other matters as you may reasonably requestBank Consent from the Administrative Agent under the Bank Credit Facility.
(p) The Company shall have furnished the Underwriters and Underwriters’ Counsel with such other certificates, opinions or caused other documents as they may have reasonably requested.
(q) At the Closing Date, the NASD shall have confirmed that it has not raised any objection with respect to be the fairness and reasonableness of the underwriting terms and arrangements.
(r) The Company shall have furnished the Underwriters and Underwriters’ Counsel with such other certificates, opinions or other documents as they may have reasonably requested. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as required by this Agreement, or if any of the certificates, opinions, written statements or letters furnished to you at such Time of Delivery a certificate or to Underwriters’ Counsel pursuant to this Section 6 shall not be reasonably satisfactory in form and substance to Xxxxxx Brothers and to Underwriters’ Counsel, all obligations of the Executive Vice PresidentUnderwriters hereunder may be cancelled by Xxxxxx Brothers at, Chief Financial Officer and Treasurer or at any time prior to, the Closing Date. Notice of such cancellation shall be given to the effect that:
(i) He is familiar with the internal accounting records of the CompanyCompany in writing, or by telephone. Any such telephone notice shall be confirmed promptly thereafter in writing.
(ii) He has reviewed the “Recent Developments” section contained in both the Preliminary Prospectus and the Prospectus. The information presented in such Recent Developments section (A) has been prepared in good faith and based upon assumptions that he believes are reasonable and consistent with the operations of the Company and (B) is a fair estimate in all material respects of the Company’s total revenues and net income for the three months ended June 30, 2011 and has been derived from the Company’s accounting and/or financial records.
Appears in 1 contract
Sources: Underwriting Agreement (Pinnacle Entertainment Inc)
Conditions of Underwriters’ Obligations. The obligations of the several Underwriters hereunderhereunder are subject to the accuracy, as to of the Shares to be delivered Execution Time and the Closing Date (as if made at each Time the Closing Date), of Delivery, shall be subject, in their discretionthe representations and warranties of the Company contained herein, to the condition that all representations and warranties and other statements of performance by the Company and of the Selling Stockholders herein are, at and as of such Time of Delivery, true and correct, the condition that the Company and the Selling Stockholders shall have performed all of its and their obligations hereunder theretofore and to be performed, and the following additional conditions:
(a) The Prospectus Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in a timely fashion in accordance with Section 5(a4(a) hereof; all material required post-effective amendments to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433 under the Act; if the Company has elected to rely upon Rule 462(b) under the Act, the Rule 462(b) Registration Statement shall have become effective effective, all filings required by 10:00 p.m., Washington, D.C. time, on Rule 424 shall have been made and no such filings shall have been made without the date consent of this Agreementthe Underwriters; no stop order suspending the effectiveness of the Registration Statement or any part thereof amendment or supplement thereto shall have been issued and issued; no proceeding proceedings for that purpose the issuance of any such order shall have been initiated or threatened by the Commissionthreatened; no stop order suspending or preventing the use and any request of the Commission for additional information (to be included in the Registration Statement or the Final Prospectus as amended or any Issuer Free Writing Prospectus supplemented or otherwise) shall have been initiated or threatened by disclosed to the Commission; Underwriters and all requests for additional information on the part of the Commission shall have been complied with to your reasonable the Underwriters' satisfaction;.
(b) Xxxxx Xxxxx L.L.P.On or prior to the Closing Date, you shall have received from Cravath, Swaine & Xxxxx, counsel for the Underwriters, shall have furnished to you such written opinion or opinions, dated such Time of Delivery, in form and substance reasonably satisfactory addressed to youthe Underwriters, with respect to such the form of Registration Statement and Final Prospectus as amended or supplemented (other than financial statements and other financial data), the validity of the Securities and other related matters as you may reasonably request, request and such counsel shall have received such papers documents and information as they may reasonably request to enable them to pass upon such matters;.
(c) Xxxxxx & Xxxxxx L.L.P.On the Closing Date there shall have been furnished to the Representative the opinion (addressed to the Representative) of Xxxxxxx X. Xxxxxxxxxxx, counsel Esq., Vice President and General Counsel for the Company, shall have furnished to you their written opinion, dated such Time of Delivery, the Closing Date and in form and substance satisfactory to youcounsel for the Underwriters, to the effect that:
(i) each of the Company and [Lyondell Refining Company, ________ and __________] (individually, a "Subsidiary" and collectively, the "Subsidiaries") has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organized, with full corporate power and authority to own its properties and conduct its business as described in the Final Prospectus as amended or supplemented, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification wherein it owns or leases material properties or conducts material business, so as to require such qualification, except where the failure to be so qualified would not have a material adverse effect on the Company and the Subsidiaries taken as a whole;
(ii) all the outstanding shares of capital stock of each Subsidiary have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Final Prospectus as amended or supplemented, all outstanding shares of capital stock of the Subsidiaries are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interests, claims, liens or encumbrances;
(iii) the Company's authorized equity capitalization is as set forth in the Final Prospectus as amended or supplemented; and the Securities conform in all material respects to the description thereof contained in the Final Prospectus as amended or supplemented;
(iv) the Indenture has been duly authorized, executed and delivered by the Company, has been duly qualified under the Trust Indenture Act, and constitutes a legal, valid and binding instrument enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors' rights generally from time to time in effect and general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law)); and the Securities have been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters pursuant to this Agreement, will constitute legal, valid and binding obligations of the Company entitled to the benefits of the Indenture;
(v) to the best knowledge of such counsel, there is no pending or threatened action, suit or proceeding before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries, which are material to the Company and its subsidiaries taken as a whole and of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Final Prospectus as amended or supplemented, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Final Prospectus as amended or supplemented, or to be filed as an exhibit, which is not described or filed as required; and the statements in the Company's Annual Report on Annex IIForm 10-K for the Year Ended December 31, 1994 under the headings "Legal Proceedings" and, to the best knowledge of such counsel, "Environmental Matters" fairly summarize in all material respects the matters therein described;
(vi) the Registration Statement has become effective under the Act; any required filing of the Final Prospectus, and any supplements thereto pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued, no proceedings for that purpose have been instituted or threatened and the Registration Statement and the Final Prospectus as amended or supplemented (other than the financial statements and other financial and statistical information contained therein as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the rules thereunder; and such counsel has no reason to believe that at the Effective Date the Registration Statement contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Final Prospectus as amended or supplemented includes any untrue statement of a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(vii) this Agreement has been duly authorized, executed and delivered by the Company;
(viii) to the best knowledge of such counsel no consent, approval, authorization or order of any court or governmental agency or body is required for the consummation by the Company of the transactions contemplated herein, except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters and such other approvals (specified in such opinion) as have been obtained;
(ix) neither the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplated nor the fulfillment of the terms hereof will conflict with, result in a breach of, or constitute a default under the charter or by-laws of the Company or the terms of any indenture or other material agreement or instrument known to such counsel and to which the Company or any of its subsidiaries is a party or bound, or any order or regulation known to such counsel to be applicable to the Company or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Company or any of its subsidiaries; and
(x) no holders of securities of the Company have rights to the registration of such securities under the Registration Statement. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Delaware or the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Final Prospectus in this paragraph (c) include any supplements thereto at the Closing Date.
(d) Xxxxxxxx X. Xxxxx, General Counsel and Corporate Secretary There shall have been furnished to the Representative a certificate of the Company, shall have furnished dated the Closing Date and addressed to you his written opinionthe Representative, dated such Time signed by the Chairman of Deliverythe Board or the President and the principal financial or accounting officer of the Company to the effect that: (i) the representations and warranties of the Company contained in this Agreement are true and correct in all material respects on and as of the Closing Date as if made on the Closing Date, in form and substance satisfactory the Company has complied with all the agreements and satisfied all the conditions on its part to yoube complied with or satisfied at or prior to the Closing Date; (ii) no stop order suspending the effectiveness of the Registration Statement has been issued, and no proceeding for that purpose has been initiated or, to the effect Company's knowledge, threatened; and (iii) since the date of the most recent financial statements included or incorporated by reference in the Final Prospectus as amended or supplemented, there has been no material adverse change in the condition (financial or other), earnings, business or properties of the Company and its subsidiaries, whether or not arising from transactions in the ordinary course of business, except as set forth on Annex IIIin or contemplated by the Final Prospectus as amended or supplemented.
(e) Xxxx Xxxxxxxxxx & Xxxxxxxxx LLP, special Indiana counsel for the Company, shall have furnished to you their written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex IV.
(f) Xxxxxx LLP, counsel for each of the Selling Stockholders, as indicated in Schedule IIA hereto, shall have furnished to you their written opinion with respect to each of the Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex V.
(g) Such local counsel as you shall reasonably require shall have furnished to you their written opinion with respect to each of the foreign Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex VI.
(h) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent Subsequent to the date of this Agreement and also at each Time of Deliveryhereof or, UHYif earlier, LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, Flackman Xxxxxxx & Xxxxxx, P.A. shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) Neither the Company nor the Subsidiaries shall have sustained since the date of the latest audited financial statements included in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, other than as set forth or contemplated in the Pricing Prospectus and (ii) since the respective dates as of which information is given in the Pricing Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease of the character specified in the capital stock letter or long-term debt letters referred to in paragraph (f) of the Company this Section 5 or the Subsidiaries or (ii) any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity business or results of operations properties of the Company and the Subsidiaries, other than as set forth or contemplated in the Pricing Prospectus, its subsidiaries the effect of which, in any such case described referred to in clause (i) or (ii)) above, is in the judgment of the Representatives Underwriters, so material and adverse materially impairs the investment quality of the Securities as to make it impracticable impractical or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Securities as contemplated by the Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any supplement thereto).
(f) At the Execution Time of Delivery and on the terms and in Closing Date, the manner contemplated in the Pricing Prospectus;
(k) On or after the Applicable TimeRepresentative shall have received a letter of Coopers & Xxxxxxx L.L.P., there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the NYSE; (ii) a suspension or material limitation in trading in the Company’s securities on the NYSE; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Texas State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if to the effect of any such event specified set forth in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus;
(l) The Shares to be sold at such Time of Delivery shall have been duly admitted for trading and quotation on the NYSE;
(m) The Company shall have obtained and delivered to the Underwriters executed copies of a lock-up agreement from each of its directors and executive officers, the Selling Stockholders and each other stockholder identified on Schedule IV hereto, in the form attached as Annex I hereto;
(n) The Company shall have complied with the provisions of Section 5(c) hereof with respect to the furnishing of prospectuses on the New York Business Day next succeeding the date of this Agreement; and
(o) The Company and the Selling Stockholders shall have furnished or caused to be furnished to you at such Time of Delivery certificates of officers of the Company and of the Selling Stockholders, respectively, satisfactory to you as to the accuracy of the representations and warranties of the Company and the Selling Stockholders, respectively, herein at and as of such Time of Delivery, as to the performance by the Company and the Selling Stockholders of all of their respective obligations hereunder to be performed at or prior to such Time of Delivery, and the Company shall have furnished or caused to be furnished certificates as to the matters set forth in subsections (a) of this Section and as to including such other matters as you the Representative may reasonably request, in form and substance satisfactory to the Representative, dated on each of such dates and addressed to the Representative.
(g) The Representative shall have been furnished such additional documents and certificates as the Representative or counsel for the Underwriters may reasonably request.
(ph) The Company shall have furnished On or caused to be furnished to you at such Time of Delivery a certificate of after the Executive Vice PresidentExecution Time, Chief Financial Officer and Treasurer to the effect that:
(i) He no downgrading shall have occurred in the rating accorded the Company's debt securities by any "nationally recognized statistical rating organization", as that term is familiar defined by the Commission for purposes of Rule 438(g)(2) under the Act, and (ii) no such organization shall have publicly announced that it has under surveillance or review, with the internal accounting records possible negative implications, its rating of any debt securities of the Company.
(iii) He has reviewed The Company also agrees to comply with such other conditions as may be set forth on Schedule I hereto. All such opinions, certificates, letters and documents shall be in compliance with the “Recent Developments” section contained provisions hereof only if they are reasonably satisfactory in both form and substance to the Preliminary Prospectus Representative and to counsel for the ProspectusUnderwriters. The information presented Company shall furnish to each Underwriter conformed copies of such opinions, certificates, letters and other documents in such Recent Developments section (A) has been prepared in good faith and based upon assumptions that he believes are reasonable and consistent with the operations number as such Underwriter shall reasonably request. If any of the Company and (B) is a fair estimate conditions specified in this Section 5 shall not have been fulfilled in all material respects when and as required by this Agreement, the Agreement and all obligations of the Company’s total revenues Underwriters hereunder may be cancelled at, or at any time prior to, the Closing Date, by the Underwriters. Notice of such cancellation shall be given to the Company in writing, or by telegraph or telephone and net income confirmed in writing. Unless the parties hereto otherwise agree, the documents required to be delivered by this Section 5 shall be delivered at the office of Cravath, Swaine & Xxxxx, counsel for the three months ended June 30underwriters, 2011 and has been derived from at Worldwide Plaza, 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, xx the Company’s accounting and/or financial recordsClosing Date.
Appears in 1 contract
Conditions of Underwriters’ Obligations. The several obligations of the Underwriters hereunder, as hereunder are subject to the Shares to be delivered at each Time accuracy of Delivery, shall be subject, in their discretion, to the condition that all representations and warranties and other statements on the part of the Company and of on the Selling Stockholders herein aredate hereof, at and as the time of such Time purchase and, if applicable, at the additional time of Delivery, true and correctpurchase, the condition that performance by the Company and the Selling Stockholders shall have performed all of its and their obligations hereunder theretofore and to be performed, and the following additional conditionsconditions precedent:
(a) The Company shall furnish to you at the time of purchase and, if applicable, at the additional time of purchase, an opinion of Xxxxx Day, counsel for the Company, in the form of Exhibit C hereto addressed to the Underwriters, and dated the time of purchase or the additional time of purchase, as the case may be, with reproduced copies for each of the other Underwriters and in form and substance satisfactory to Xxxxxx & Xxxxxxx LLP, counsel for the Underwriters.
(b) You shall have received from Deloitte & Touche LLP letters dated, respectively, the date of this Agreement, the time of purchase and, if applicable, the additional time of purchase, and addressed to the Underwriters (with reproduced copies for each of the Underwriters) in the forms heretofore approved by UBS.
(c) You shall have received at the time of purchase and, if applicable, at the additional time of purchase, the favorable opinion of Xxxxxx & Xxxxxxx LLP, counsel for the Underwriters, dated the time of purchase or the additional time of purchase, as the case may be, and in form and substance satisfactory to the Underwriters.
(d) No Prospectus or amendment or supplement to the Registration Statement or the Prospectus shall have been filed to which you object in writing.
(e) The Registration Statement shall become effective not later than 5:30 P.M. New York City time on the date of this Agreement and, if Rule 430A under the Act is used, the Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(a) hereof; all material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433 under the Act; if the Company has elected to rely upon Rule 462(b) under the Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m., Washington, D.C. time, on the date of this Agreement; no stop order suspending the effectiveness of the Registration Statement at or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction;
(b) Xxxxx Xxxxx L.L.P., counsel for the Underwriters, shall have furnished to you such written opinion or opinions, dated such Time of Delivery, in form and substance reasonably satisfactory to you, with respect to such matters as you may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;
(c) Xxxxxx & Xxxxxx L.L.P., counsel for the Company, shall have furnished to you their written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex II.
(d) Xxxxxxxx X. Xxxxx, General Counsel and Corporate Secretary of the Company, shall have furnished to you his written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex III.
(e) Xxxx Xxxxxxxxxx & Xxxxxxxxx LLP, special Indiana counsel for the Company, shall have furnished to you their written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex IV.
(f) Xxxxxx LLP, counsel for each of the Selling Stockholders, as indicated in Schedule IIA hereto, shall have furnished to you their written opinion with respect to each of the Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex V.
(g) Such local counsel as you shall reasonably require shall have furnished to you their written opinion with respect to each of the foreign Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex VI.
(h) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m.before 5:30 P.M., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to second full business day after the date of this Agreement and also at each Time Agreement.
(f) Prior to the time of Deliverypurchase, UHYand, LLP shall have furnished to you a letter or lettersif applicable, dated the respective dates additional time of delivery thereofpurchase, in form and substance satisfactory to you;
(i) On the date of the Prospectus at a time prior no stop order with respect to the execution effectiveness of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent shall have been issued under the Act or proceedings initiated under Section 8(d) or 8(e) of the Act; (ii) the Registration Statement and all amendments thereto shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the date statements therein not misleading; and (iii) the Prospectus and all amendments or supplements thereto shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they are made, not misleading.
(g) Between the time of execution of this Agreement and also at each Time the time of Delivery, Flackman Xxxxxxx & Xxxxxx, P.A. shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) Neither the Company nor the Subsidiaries shall have sustained since the date of the latest audited financial statements included in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, other than as set forth or contemplated in the Pricing Prospectus and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of the Company purchase or the Subsidiaries or any changeadditional time of purchase, as the case may be, no material adverse change or any development involving a prospective changematerial adverse change in the business, in or affecting the general affairsproperties, management, financial position, stockholders’ equity condition or results of operations of the Company and the SubsidiariesSubsidiaries taken as a whole shall occur or become known.
(h) The Company will, other than at the time of purchase and, if applicable, at the additional time of purchase, deliver to you a certificate of its Chief Executive Officer and its Chief Financial Officer to the form attached as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause EXHIBIT B hereto.
(i) or (ii), is You shall have received signed Lock-up Agreements referred to in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Pricing Prospectus;Section 3(r) hereof.
(k) On or after the Applicable Time, there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the NYSE; (ii) a suspension or material limitation in trading in the Company’s securities on the NYSE; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Texas State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus;
(l) The Shares to be sold at such Time of Delivery shall have been duly admitted for trading and quotation on the NYSE;
(mj) The Company shall have obtained and delivered to the Underwriters executed copies of a lock-up agreement from each of its directors and executive officers, the Selling Stockholders and each other stockholder identified on Schedule IV hereto, in the form attached as Annex I hereto;
(n) The Company shall have complied with the provisions of Section 5(c) hereof with respect to the furnishing of prospectuses on the New York Business Day next succeeding the date of this Agreement; and
(o) The Company and the Selling Stockholders shall have furnished or caused to be furnished to you at such Time of Delivery other documents and certificates of officers of the Company and of the Selling Stockholders, respectively, satisfactory to you as to the accuracy and completeness of any statement in the Registration Statement and the Prospectus as of the representations and warranties time of purchase and, if applicable, the Company and the Selling Stockholdersadditional time of purchase, respectively, herein at and as of such Time of Delivery, as to the performance by the Company and the Selling Stockholders of all of their respective obligations hereunder to be performed at or prior to such Time of Delivery, and the Company shall have furnished or caused to be furnished certificates as to the matters set forth in subsections (a) of this Section and as to such other matters as you may reasonably request.
(pk) The Company Shares shall have furnished been approved for listing on the New York Exchange, subject only to notice of issuance at or caused to be furnished to you at such Time of Delivery a certificate of the Executive Vice President, Chief Financial Officer and Treasurer prior to the effect that:
(i) He is familiar with time of purchase or the internal accounting records additional time of purchase, as the Companycase may be.
(ii) He has reviewed the “Recent Developments” section contained in both the Preliminary Prospectus and the Prospectus. The information presented in such Recent Developments section (A) has been prepared in good faith and based upon assumptions that he believes are reasonable and consistent with the operations of the Company and (B) is a fair estimate in all material respects of the Company’s total revenues and net income for the three months ended June 30, 2011 and has been derived from the Company’s accounting and/or financial records.
Appears in 1 contract
Sources: Underwriting Agreement (International Coal Group, Inc.)
Conditions of Underwriters’ Obligations. The obligations of the Underwriters hereunder, to purchase and pay for the Securities as to the Shares to be delivered at each Time of Delivery, provided herein shall be subject, in their discretion, to subject to: (i) the condition that all accuracy of the representations and warranties and other statements of the Company and herein contained, as of the Selling Stockholders herein are, at date hereof and as of such Time the Closing Date, (ii) the absence from any certificates, opinions, written statements or letters furnished to the Representative or to Underwriters’ Counsel pursuant to this Section 6 of Deliveryany misstatement or omission, true and correct, (iii) the condition that performance by the Company and the Selling Stockholders shall have performed all of its and their obligations hereunder theretofore to be performedhereunder, and (iv) each of the following additional conditions:. For purposes of this Section 6, the terms “Closing Date” and “Closing” shall refer to the Closing Date for the Securities and each of the foregoing and following conditions must be satisfied as of each Closing.
(a) The Registration Statement shall still be effective and all necessary regulatory or listing approvals shall have been received not later than 5:30 p.m., New York time, on the date of this Agreement, or at such later time and date as shall have been consented to in writing by the Representative. The Prospectus Supplement shall have been filed with the Commission in a timely fashion in accordance with the terms hereof and a form of the Prospectus Supplement containing information relating to the description of the Securities and the method of distribution and similar matters shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by period; and, at or prior to the rules and regulations under Closing Date or the Act and in accordance with Section 5(a) hereof; all material required to be filed by actual time of the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433 under the Act; if the Company has elected to rely upon Rule 462(b) under the ActClosing, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m., Washington, D.C. time, on the date of this Agreement; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated thereof, or threatened by the Commission; no stop order any amendment thereof, nor suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus Supplement shall have been issued; no proceedings for the issuance of such an order shall have been initiated or threatened by threatened; any request of the Commission; and all requests Commission for additional information on (to be included in the part of Registration Statement, the Commission Prospectus Supplement, or otherwise) shall have been complied with to your reasonable the Representative’s satisfaction;; and FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(b) Xxxxx Xxxxx L.L.P.The Representative shall not have reasonably determined, counsel for and advised the UnderwritersCompany, shall have furnished to you such written opinion that the Registration Statement or opinionsthe Prospectus Supplement, dated such Time or any amendment thereof or supplement thereto contains an untrue statement of Deliveryfact which, in form the Representative’s reasonable opinion, is material, or omits to state a fact which, in the Representative’s reasonable opinion, is material and substance reasonably satisfactory is required to you, with respect be stated therein or necessary to such matters as you may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;make the statements therein not misleading.
(c) Xxxxxx & Xxxxxx L.L.P.The Representative shall have received the favorable written opinions, including, without limitation, a negative assurance letter of (a) Xxxxxxxxx Chediak Xxxxx Xxxxxxx Xxxxxx, the legal counsel for the Company, shall have furnished to you their written opinion(b) intellectual property legal counsel and (c) regulatory legal counsel, dated such Time as of Delivery, in form and substance satisfactory to you, the Closing Date addressed to the effect set forth on Annex IIUnderwriters in the forms reasonably acceptable to the Representative and legal counsel for the Company.
(d) Xxxxxxxx X. Xxxxx, General Counsel The Representative shall have received a certificate of the Chief Executive Officer and Corporate Secretary Chief Financial Officer of the Company, shall have furnished to you his written opinion, dated such Time as of Delivery, in form and substance satisfactory to you, each Closing Date to the effect set forth on Annex III.
that: (ei) Xxxx Xxxxxxxxxx & Xxxxxxxxx LLP, special Indiana counsel for the Company, shall have furnished to you their written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex IV.
(f) Xxxxxx LLP, counsel for each of the Selling Stockholders, as indicated in Schedule IIA hereto, shall have furnished to you their written opinion with respect to each of the Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect condition set forth in Annex V.
subsection (ga) Such local counsel of this Section 6 has been satisfied, (ii) as you shall reasonably require shall have furnished to you their written opinion with respect to each of the foreign Selling Stockholdersdate hereof and as of the applicable Closing Date, dated the First Time representations and warranties of Delivery, in form and substance satisfactory to you, to the effect Company set forth in Annex VI.
Sections 1 and 2 hereof are accurate, (hiii) On the date as of the Prospectus at a time prior to the execution of this Agreementapplicable Closing Date, at 9:30 a.m.all agreements, New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement conditions and also at each Time of Delivery, UHY, LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) On the date obligations of the Prospectus at a time Company to be performed or complied with hereunder on or prior to the execution of this Agreementthereto have been duly performed or complied with, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, Flackman Xxxxxxx & Xxxxxx, P.A. shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(iiv) Neither the Company nor and the Subsidiaries shall have not sustained since the date of the latest audited financial statements included in the Pricing Prospectus any material loss or interference with its business from fire, explosion, flood or other calamitytheir respective businesses, whether or not covered by insurance, or from any labor dispute or court disruption or any legal or governmental actionproceeding, (v) no stop order suspending the effectiveness of the Registration Statement or decreeany post-effective amendment thereof has been issued and no proceedings therefor have been initiated or threatened by the Commission, other than (vi) there are no pro forma or as set forth adjusted financial statements that are required to be included or contemplated incorporated by reference in the Pricing Registration Statement and the Prospectus Supplement pursuant to the Rules and Regulations which are not so included or incorporated by reference, and (iivii) since subsequent to the respective dates as of which information is given in the Pricing Registration Statement and the Prospectus Supplement there has not been any Material Adverse Change or any event that is reasonably likely to result in a Material Adverse Change, whether or not arising from transactions in the ordinary course of business.
(e) On the date of this Agreement and on the Closing Date, the Representative shall have received a “cold comfort” letter from BDO as of the date of delivery and addressed to the Underwriters and in form and substance satisfactory to the Representative and Underwriters’ Counsel, confirming that they are independent certified public accountants with respect to the Company and its Subsidiaries within the meaning of the Securities Act and the Rules and Regulations, and stating, as of the date of delivery (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus Supplement, as of a date not more than five (5) days prior to the date of such letter), the conclusions and findings of such firm with respect to the financial information and other matters relating to the Registration Statement covered by such letter.
(f) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any post-effective amendment thereof) and the Prospectus Supplement (exclusive of any supplement thereto), there shall not have been any change in the capital stock or long-term debt of the Company or the Subsidiaries any Subsidiary or any change, change or any development involving a prospective change, whether or not arising from transactions in the ordinary course of business, in the business, condition (financial or affecting the general affairsotherwise), management, financial position, stockholders’ equity or results of operations operations, shareholders’ equity, properties or prospects of the Company and the Subsidiaries, taken as a whole, including but not limited to the occurrence of any fire, flood, storm, explosion, accident, act of war or terrorism or other than as set forth or contemplated in the Pricing Prospectuscalamity, the effect of which, in any such case described in clause (i) or (ii)above, is is, in the sole judgment of the Representatives Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery Offering on the terms and in the manner contemplated in the Pricing Prospectus;Prospectus Supplement (exclusive of any supplement).
(kg) On or after [intentionally omitted]
(h) The Common Stock is registered under the Applicable TimeExchange Act and, there shall not have occurred any as of the following: (i) a suspension or material limitation in Closing Date, the Shares shall be listed and admitted and authorized for trading in securities generally on the NYSE; (ii) a suspension or material limitation in trading in the Company’s securities on the NYSE; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Texas State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation Nasdaq Capital Market and satisfactory evidence of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus;
(l) The Shares to be sold at such Time of Delivery action shall have been duly admitted for trading and quotation on provided to the NYSE;
(m) Representative. The Company shall have obtained taken no action designed to, or likely to have the effect of terminating the registration of the Common Stock under the Exchange Act or delisting or suspending from trading the Common Stock from the Nasdaq Capital Market, nor has the Company received any information suggesting that the Commission or the Nasdaq Capital Market is contemplating terminating such registration or listing. The Shares and delivered to shares of Common Stock underlying the Underwriters executed copies of a lock-up agreement from each of its directors and executive officers, the Selling Stockholders and each other stockholder identified on Schedule IV hereto, in the form attached as Annex I hereto;Warrants shall be DTC eligible.
(ni) The Company FINRA shall have complied with the provisions of Section 5(c) hereof confirmed that it has not raised any objection with respect to the furnishing fairness and reasonableness of prospectuses the underwriting terms and arrangements. In addition, the Company shall, if requested by the Representative, make or authorize the Underwriters’ Counsel to make on the New York Business Day next succeeding Company’s behalf, an Issuer Filing with the date of this Agreement; and
(o) The Company and the Selling Stockholders shall have furnished or caused FINRA Corporate Financing Department pursuant to be furnished to you at such Time of Delivery certificates of officers of the Company and of the Selling Stockholders, respectively, satisfactory to you as FINRA Rule 5110 with respect to the accuracy of the representations Registration Statement and warranties of the Company and the Selling Stockholders, respectively, herein at and as of such Time of Delivery, as to the performance by the Company and the Selling Stockholders of pay all of their respective obligations hereunder to be performed at or prior to such Time of Delivery, and the Company shall have furnished or caused to be furnished certificates as to the matters set forth filing fees required in subsections (a) of this Section and as to such other matters as you may reasonably requestconnection therewith.
(pj) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the Closing Date, prevent the issuance or sale of the Securities; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company.
(k) The Company shall have furnished the Underwriters and Underwriters’ Counsel with such other certificates, opinions or caused to be other documents as they may have reasonably requested. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as required by this Agreement, or if any of the certificates, opinions, written statements or letters furnished to you at such Time of Delivery a certificate the Representative or to Underwriters’ Counsel pursuant to this Section 6 shall not be reasonably satisfactory in form and substance to the Representative and to Underwriters’ Counsel, all obligations of the Executive Vice PresidentUnderwriters hereunder may be cancelled by the Representative at, Chief Financial Officer and Treasurer or at any time prior to, the consummation of the Closing. Notice of such cancellation shall be given to the effect that:
(i) He is familiar with the internal accounting records of the CompanyCompany in writing or by telephone. Any such telephone notice shall be confirmed promptly thereafter in writing.
(ii) He has reviewed the “Recent Developments” section contained in both the Preliminary Prospectus and the Prospectus. The information presented in such Recent Developments section (A) has been prepared in good faith and based upon assumptions that he believes are reasonable and consistent with the operations of the Company and (B) is a fair estimate in all material respects of the Company’s total revenues and net income for the three months ended June 30, 2011 and has been derived from the Company’s accounting and/or financial records.
Appears in 1 contract
Conditions of Underwriters’ Obligations. The obligations of the Underwriters hereunder, as to purchase and pay for the Shares to be delivered at each Time of Delivery, shall be subject, in their discretion, to the condition that all representations and warranties and other statements of the Company and of the Selling Stockholders herein are, at and as of such Time of Delivery, true and correct, the condition that the Company and the Selling Stockholders shall have performed all of its and their obligations hereunder theretofore to be performed, and the following additional conditions:
(a) The Prospectus shall have been filed with the Commission Offered Securities pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(a) hereof; all material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433 under the Act; if the Company has elected to rely upon Rule 462(b) under the Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m., Washington, D.C. time, on the date of this Agreement; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction;
(b) Xxxxx Xxxxx L.L.P., counsel for the Underwriters, shall have furnished to you such written opinion or opinions, dated such Time of Delivery, in form and substance reasonably satisfactory to you, with respect to such matters as you may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;
(c) Xxxxxx & Xxxxxx L.L.P., counsel for the Company, shall have furnished to you their written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex II.
(d) Xxxxxxxx X. Xxxxx, General Counsel and Corporate Secretary of the Company, shall have furnished to you his written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex III.
(e) Xxxx Xxxxxxxxxx & Xxxxxxxxx LLP, special Indiana counsel for the Company, shall have furnished to you their written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex IV.
(f) Xxxxxx LLP, counsel for each of the Selling Stockholders, as indicated in Schedule IIA hereto, shall have furnished to you their written opinion with respect to each of the Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex V.
(g) Such local counsel as you shall reasonably require shall have furnished to you their written opinion with respect to each of the foreign Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex VI.
(h) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Terms Agreement and also at each Time of Delivery, UHY, LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, Flackman Xxxxxxx & Xxxxxx, P.A. shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) Neither the Company nor the Subsidiaries shall have sustained since the date of the latest audited financial statements included in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, other than as set forth or contemplated in the Pricing Prospectus and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or the Subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and the Subsidiaries, other than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Pricing Prospectus;
(k) On or after the Applicable Time, there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the NYSE; (ii) a suspension or material limitation in trading in the Company’s securities on the NYSE; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Texas State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus;
(l) The Shares to be sold at such Time of Delivery shall have been duly admitted for trading and quotation on the NYSE;
(m) The Company shall have obtained and delivered to the Underwriters executed copies of a lock-up agreement from each of its directors and executive officers, the Selling Stockholders and each other stockholder identified on Schedule IV hereto, in the form attached as Annex I hereto;
(n) The Company shall have complied with the provisions of Section 5(c) hereof with respect to the furnishing of prospectuses on the New York Business Day next succeeding the date of this Agreement; and
(o) The Company and the Selling Stockholders shall have furnished or caused to be furnished to you at such Time of Delivery certificates of officers of the Company and of the Selling Stockholders, respectively, satisfactory to you as are subject to the accuracy of the representations and warranties of the Company and herein contained, to the Selling Stockholdersaccuracy of the statements of the Company's officers made in any certificate furnished pursuant to the provisions hereof, respectively, herein at and as of such Time of Delivery, as to the performance by the Company and the Selling Stockholders of all of their respective its covenants and other obligations hereunder to be performed at or prior to such Time of Deliveryhereunder, and the Company shall have furnished or caused to be furnished certificates as to the matters set forth in subsections following further conditions:
(a) At the applicable Closing Time:
(i) The Registration Statement, including any Rule 462(b) Registration Statement, has become effective under the 1933 Act. No stop order suspending the effectiveness of this Section the Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated or threatened by the Commission. Any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of counsel to the Underwriters. A prospectus containing information relating to the description of the Offered Securities, the specific method of distribution and similar matters shall have been filed with the Commission in accordance with Rule 424(b) (1), (2), (3), (4) or (5), as applicable (or any required post-effective amendment providing such information shall have been filed and declared effective in accordance with the requirements of Rule 430A), or, if the Company has elected to rely upon Rule 434 of the 1933 Act Regulations, a Term Sheet including the Rule 434 Information shall have been filed with the Commission in accordance with Rule 424 (b)(7);
(ii) The rating assigned by any nationally recognized statistical rating organization to any debt securities or preferred stock of the Company as of the date of the applicable Terms Agreement shall not have been lowered since the execution of such other matters Terms Agreement nor shall any such rating organization have publicly announced that it has placed any debt securities or preferred stock of the Company on what is commonly termed a "watch list" for possible downgrading; and
(iii) There shall not have come to the attention of such of you as may be named in the applicable Terms Agreement any facts that would cause such of you may reasonably requestto believe that the Prospectus, together with the applicable Prospectus Supplement, at the time it was required to be delivered to a purchaser of the Offered Securities, contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(pb) At the applicable Closing Time you shall have received:
(i) The Company shall have furnished or caused to be furnished to you at such Time of Delivery a certificate favorable opinion, dated as of the applicable Closing Time, of David L. Zoeller, Executive Vice President, Chief Financial Officer General Xxxxxxx xxx Xxxretary of the Company, or such other counsel for the Company satisfactory to such of you as may be named in the applicable Terms Agreement, in form and Treasurer substance satisfactory to such of you as may be named in the applicable Terms Agreement to the effect that:
(iA) He is familiar with If the internal accounting records Offered Securities include Debt Securities, the applicable Indenture has been duly and validly authorized, executed and delivered by the Company and constitutes the valid and binding agreement of the Company., enforceable in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, reorganization, moratorium, fraudulent conveyance, insolvency or other laws relating to or affecting enforcement of creditors' rights or by general equity principles (regardless of whether such enforceability is considered in a proceeding in equity or at law);
(iiB) He has reviewed If the “Recent Developments” section contained Offered Securities include Debt Securities, such Debt Securities are in both the Preliminary Prospectus form contemplated by the applicable Indenture, and have been duly and validly authorized by all necessary corporate action and, when executed and authenticated as specified in the Prospectus. The information presented in such Recent Developments section (A) has been prepared in good faith applicable Indenture and based upon assumptions that he believes are reasonable delivered against payment pursuant to this Agreement, as supplemented by the applicable Terms Agreement, will be valid and consistent with the operations binding obligations of the Company enforceable in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, reorganization, moratorium, fraudulent conveyance, insolvency or other laws relating to or affecting enforcement of creditors' rights or by general equity principles (regardless of whether such enforceability is considered in a proceeding in equity or at law), and except further as enforcement thereof may be limited by requirements that a claim (Bor a foreign currency judgment in respect of such claim) is be converted into United States dollars at a fair estimate rate of exchange prevailing on a date determined pursuant to applicable law, and will be entitled to the benefits of the applicable Indenture;
(C) If the Offered Securities include Preferred Stock, such shares of Preferred Stock have been duly and validly authorized by all necessary corporate action, and when executed and delivered and issued and paid for in accordance with this agreement, as supplemented by the applicable Terms Agreement, will be validly issued, fully paid and non-assessable and the issuance of such shares of Preferred Stock will not be subject to preemptive rights;
(D) The Offered Securities and, if applicable, the Indenture, the Common Stock and the Deposit Agreement conform in all material respects to the descriptions thereof in the Prospectus and the applicable Prospectus Supplement;
(E) If the Offered Securities include Debt Securities, the applicable Indenture is qualified under the 1939 Act;
(F) If the Offered Securities include Convertible Debt Securities or Convertible Preferred Stock, the shares of Common Stock issuable upon conversion of such Convertible Debt Securities or Convertible Preferred Stock have been duly authorized and reserved for issuance upon such conversion by all necessary corporate action and such shares, when issued upon such conversion will be duly and validly issued and will be fully paid and non-assessable, and the issuance of such shares upon such conversion will not be subject to preemptive rights;
(G) If the Offered Securities include Depositary Shares, the applicable Deposit Agreement has been duly and validly authorized, executed and delivered by the Company and constitutes the valid and binding agreement of the Company’s total revenues , enforceable in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other laws relating to or affecting enforcement of creditors' rights or by general equity principles (regardless of whether such enforceability is considered in a proceeding in equity or at law);
(H) If the Offered Securities include Depositary Shares, such Depositary Shares are in the form contemplated by the applicable Deposit Agreement, and net income have been duly and validly authorized by all necessary corporate action and, when executed and authenticated as specified in the applicable Deposit Agreement and delivered against payment pursuant to this Agreement, as supplemented by the applicable Terms Agreement, will be valid and binding obligations of the Company enforceable in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other laws relating to or affecting enforcement of creditors' rights or by general equity principles (regardless of whether such enforceability is considered in a proceeding in equity or at law), and except further as enforcement thereof may be limited by requirements that a claim (or a foreign currency judgment in respect of such claim) be converted into United States dollars at a rate of exchange prevailing on a date determined pursuant to applicable law, and will be entitled to the benefits of the applicable Deposit Agreement;
(I) This Agreement and the applicable Terms Agreement have been duly authorized, executed and delivered by the Company;
(J) The Registration Statement, including any Rule 462(b) Registration Statement, the Rule 430A Information and the Rule 434 Information, as applicable, the Prospectus, excluding the documents incorporated by reference therein, and each amendment or supplement to the Registration Statement and Prospectus, excluding the documents incorporated by reference therein, as of their respective effective or issue dates (other than financial statements and supporting schedules included therein or omitted therefrom, and the Trustee's Statement of Eligibility on Form T-l ("Form T-l") as to which such counsel need not express an opinion) complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations;
(K) No authorization, approval, consent, order or decree of any court or governmental authority or agency is required in connection with the sale of the Offered Securities under this Agreement and the applicable Terms Agreement other than as may be required under state securities laws;
(L) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware;
(M) The Company has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement;
(N) The Company is duly registered as a bank holding company under the Bank Holding Company Act; to the best knowledge and information of such counsel, after due investigation, the Company is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, except where the failure to so qualify or be in good standing would not have a Material Adverse Effect;
(O) The authorized, issued and outstanding capital stock of the Company is as set forth in the Prospectus in the [first] paragraph under each of "Description of Preferred Stock" and "Description of Common Stock" (except for subsequent issuances, if any, pursuant to reservations or agreements) and the three months ended June 30shares of issued and outstanding Common Stock have been duly authorized and validly issued and are fully paid and nonassessable; and the Common Stock of the Company conforms to all statements relating thereto contained in the Registration Statement;
(P) Each Significant Subsidiary of the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, 2011 continues to hold a valid certificate to do business as such and has full power and authority to conduct business as such, has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and, to the best knowledge and information of such counsel, after due investigation, is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify or be in good standing would not have a Material Adverse Effect; and all of the issued and outstanding capital stock of each such Significant Subsidiary has been derived from duly authorized and validly issued, is fully paid and non-assessable (subject to the provisions of Section 55 of Title 12 of the United States Code in the case of Significant Subsidiaries which are national banking associations) and, to the best knowledge and information of such counsel, after due investigation, is owned by the Company’s accounting and/or , directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity;
(Q) The Registration Statement, including any Rule 462(b) Registration Statement, is effective under the 1933 Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424 (b); and, to the best knowledge and information of such counsel, after due investigation, no stop order suspending the effectiveness of the Registration Statement has been issued under the 1933 Act or proceedings therefor initiated or threatened by the Commission;
(R) Each document filed pursuant to the 1934 Act (other than the financial records.statements and supporting schedules included therein or omitted therefrom, as to which such counsel need express no opinion) and incorporated by reference in the Prospectus complied when so filed as to form in all material respects with the 1934 Act and the rules and regulations thereunder;
(S) To the best knowledge and information of such counsel, after due investigation, there are no legal or governmental proceedings pending or threatened which are required to be disclosed in the Registration Statement, other than those disclosed therein, and all pending legal or governmental proceedings to which the Company or any subsidiary of the Company is a party or to which any of their property or assets is subject which are not described in the Registration Statement, including ordinary routine litigation incidental to the business of the Company or any such subsidiary, are not material;
(T) The information in the Prospectus under the captions "Description of Debt Securities," "Senior Securities", "Subordinated Securities", "Description of Preferred Stock", "Description of Depositary Shares" and "Description of Common Stock" and, with respect to the Prospectus Supplement relating to the Offered Securities, any further description with respect to such Offered Securities and, to the extent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is correct in all material respects;
Appears in 1 contract
Conditions of Underwriters’ Obligations. The respective obligations of the several Underwriters hereunder, as hereunder are subject to the Shares to be delivered at each Time accuracy, when made and on the Closing Date, of Delivery, shall be subject, in their discretionthe representations and warranties of the Representing Parties contained herein, to the condition that all representations and warranties and other accuracy of the statements of the Company and Representing Parties made in any certificates pursuant to the provisions hereof, to the performance by the Representing Parties of the Selling Stockholders herein are, at and as of such Time of Delivery, true and correct, the condition that the Company and the Selling Stockholders shall have performed all of its and their respective obligations hereunder theretofore to be performedhereunder, and to each of the following additional terms and conditions:
(a) The Prospectus shall have been filed with Prior to the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(a) hereof; all material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433 under the Act; if the Company has elected to rely upon Rule 462(b) under the ActClosing Date, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m., Washington, D.C. time, on the date of this Agreement; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; no stop order suspending and any request of the Commission for inclusion of additional information in the Registration Statement or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission otherwise shall have been complied with to your the reasonable satisfaction;satisfaction of the Representative; and the Representing Parties shall have filed the Prospectus Supplement with the Commission pursuant to Rule 424(b) of the Rules and Regulations within the time period prescribed by such rule.
(b) Xxxxx Xxxxx L.L.P.All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Certificates, the Pooling Agreement, the Registration Statement and the Prospectus, and all other legal matters relating to such agreements and the transactions contemplated hereby and thereby shall be satisfactory in all material respects to counsel for the Underwriters, and the Representing Parties shall have furnished to you such written opinion or opinions, dated such Time of Delivery, in form and substance reasonably satisfactory to you, with respect to such matters as you may reasonably request, and such counsel shall have received such papers all documents and information as that they may reasonably request to enable them to pass upon such matters;.
(c) Xxxxxx & Xxxxxx L.L.P.The Pooling Agreement shall have been duly executed and delivered by the Depositor, the Seller, the Master Servicer and the Trustee and the Certificates shall have been duly executed and delivered by the Trustee on behalf of the Issuer and duly authenticated by the Trustee.
(d) The Representative shall have received evidence satisfactory to it and its counsel for that on or before the CompanyClosing Date, UCC-1 financing statements required to be filed on or prior to the Closing Date pursuant to the Pooling Agreement have been filed.
(e) [_____________], ______ of the Bank, shall have furnished to you their the Representative his written opinion, addressed to the Underwriters and dated such Time the Closing Date, regarding the due organization and power and authority of Deliverythe Seller, the due authorization, execution and delivery by the Seller of the Pooling Agreement, no conflicts or violations of its charter or by-laws, contracts or law and other related matters, in form and substance reasonably satisfactory to you, to the effect set forth on Annex IIRepresentative and its counsel.
(df) Xxxxxxxx X. XxxxxXxxxxxxx, General Counsel and Corporate Secretary of Xxxxxx & Finger, P.A., special Delaware counsel to the CompanyDepositor, shall have furnished to you his the Representative their written opinion, as counsel to the Depositor, addressed to the Underwriters and dated such Time the Closing Date, regarding (i) the due organization of Deliverythe Depositor and (ii) other general Delaware law matters with respect to the Depositor, including, without limitation, the due authorization, execution and delivery of the Pooling Agreement by the Depositor, in each case, in form and substance reasonably satisfactory to you, to the effect set forth on Annex IIIRepresentative and its counsel.
(eg) Xxxx Xxxxxxxxxx Xxxxxxxx, Xxxxxx & Xxxxxxxxx LLPFinger, P.A., special Indiana Delaware counsel for to the CompanyIssuer, shall have furnished to you the Representative their written opinion, as counsel to the Issuer, addressed to the Underwriters and dated such Time the Closing Date, regarding (i) the due organization of Deliverythe Issuer, and (ii) other general Delaware law matters with respect to the Issuer, including, without limitation, the due authorization and issuance of the Certificates, in each case, in form and substance reasonably satisfactory to you, to the effect set forth on Annex IVRepresentative and its counsel.
(fh) Sidley Xxxxxx LLPXxxxx & Xxxx LLP shall have furnished to the Representative their written opinion, counsel for each addressed to the Underwriters and dated the Closing Date, regarding (i) the enforceability of the Selling StockholdersPooling Agreement, (ii) the validity of the security interests created thereby, (iii) the due authorization and issuance of the Certificates, (iv) no violations of law, (v) compliance with applicable federal securities laws, (vi) exemption of the Depositor, the Bank and the Issuer from registration as indicated an investment company under the Investment Company Act of 1940, (vii) the conformity in Schedule IIA heretoall material respects of the Pooling Agreement to the description thereof contained in the Registration Statement and the Prospectus, (viii) negative assurances concerning the Prospectus and (ix) the lack of qualification of the Pooling Agreement under the Trust Indenture Act, in each case in form and substance reasonably satisfactory to the Representative and its counsel.
(i) [_______________], special Alabama counsel to the Bank, shall have furnished to you the Representative their written opinion opinion, addressed to the Underwriters and dated the Closing Date, regarding the perfection and priority of the security interests created by the Pooling Agreement.
(j) Sidley Xxxxxx Xxxxx & Xxxx LLP shall have furnished to the Representative their written opinion, addressed to the Underwriters and dated the Closing Date, with respect to each certain matters relating to the transfer of the Selling Stockholders, dated Receivables to the First Time of DeliveryIssuer, in form and substance reasonably satisfactory to youthe Representative and its counsel.
(k) Sidley Xxxxxx Xxxxx & Xxxx LLP shall have furnished to the Representative their written opinion, addressed to the Underwriters and dated the Closing Date, to the effect that (i) the Issuer will not be an association (or a publicly trade partnership) taxable as a corporation for federal income tax purposes and that the Issuer will be classified as a grantor trust under subpart E, part 1, subchapter J, chapter 1 of subtitle A of the Code, (ii) the holders of the Certificates will be treated as the owners of undivided interests in the interest and principal portions of the Issuer represented by the Certificates for federal income tax purposes and (iii) the statements set forth in Annex V.
(g) Such local counsel as you shall reasonably require shall have furnished the Prospectus under the heading "Certain Federal Income Tax Consequences", to you their written opinion with respect to each the extent that they are statements of the foreign Selling Stockholders, dated the First Time of Deliverylaw are true and correct in all material respects, in form and substance reasonably satisfactory to you, to the effect set forth in Annex VIRepresentative and its counsel.
(hl) On The Representative shall have received from [_______________], counsel for the date of Underwriters, such opinion or opinions, dated the Prospectus at a time prior Closing Date, with respect to such matters as the execution of this AgreementRepresentative may require, at 9:30 a.m., New York City time, on and the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, UHY, LLP Representing Parties shall have furnished to you a letter or letterssuch counsel such documents as they reasonably request for enabling them to pass upon such matters.
(m) counsel to the Trustee, shall have furnished to the Representative their written opinion, as counsel to the Trustee, addressed to the Underwriters and dated the respective dates Closing Date, regarding the due organization of the Trustee, the due authorization, execution and delivery thereofby the Trustee of the Pooling Agreement, no conflicts or violations of organizational documents, contracts or law and other related matters, in form and substance reasonably satisfactory to you;the Representative and its counsel.
(in) On The Representative shall have received a letter dated the date hereof (the "Procedures Letter") from a firm of independent nationally recognized certified public accountants acceptable to the Representative verifying the accuracy of such financial and statistical data contained in the Prospectus as the Representative shall deem advisable. In addition, if any amendment or supplement to the Prospectus made after the date hereof contains financial or statistical data, the Representative shall have received a letter dated the Closing Date confirming the Procedures Letter and providing additional comfort on such new data.
(o) The Representative shall have received a certificate, dated the Closing Date, of any of the Prospectus Chairman of the Board, the President, any Senior Vice President or the chief financial officer of the Depositor stating that (A) the representations and warranties of the Depositor contained in this Agreement and the Pooling Agreement are true and correct on and as of the Closing Date, (B) the Depositor has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder and under the Pooling Agreement at a time or prior to the execution Closing Date, (C) no stop order suspending the effectiveness of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent has been issued and no proceedings for that purpose have been instituted or, to the date best of this Agreement and also at each Time of Deliveryhis or her knowledge, Flackman Xxxxxxx & Xxxxxxare contemplated by the Commission, P.A. shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) Neither the Company nor the Subsidiaries shall have sustained since the date of the latest audited financial statements included in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, other than as set forth or contemplated in the Pricing Prospectus and (iiD) since the respective dates as of which information is given in the Pricing Prospectus ______, ____, there shall not have has been any no material adverse change in the capital stock financial position or long-term debt results of operations of the Company Depositor or the Subsidiaries Issuer or any change, or any development involving including a prospective change, in or affecting the general affairscondition (financial or otherwise), managementresults of operations, business or prospects of the Depositor or the Issuer except as set forth in or contemplated by the Registration Statement and the Prospectus.
(p) The Representative shall have received a certificate, dated the Closing Date, of any of the Chairman of the Board, the President, any Senior Vice President or the Chief Financial Officer of the Bank stating that (A) the representations and warranties of the Bank contained in this Agreement and the Pooling Agreement are true and correct on and as of the Closing Date, (B) the Bank has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder and under the Pooling Agreement at or prior to the Closing Date, and (C) since ______, ____, there has been no material adverse change in the financial position, stockholders’ equity position or results of operations of the Company and Bank or the SubsidiariesIssuer or any change, other than or any development including a prospective change, in or affecting the condition (financial or otherwise), results of operations, business or prospects of the Bank or the Issuer except as set forth in or contemplated in by the Pricing Registration Statement and the Prospectus, .
(q) The Representative shall have received a letter from ____ stating that the effect Class A Certificates have received a rating of which, in "___" from _____ and a letter from ____ stating that the Class A Certificates have received a rating of "___" from _____.
(r) The Representative shall have received a letter from ____ stating that the Class B Certificates have received a rating of "___" from _____ and a letter from ____ stating that the Class B Certificates have received a rating of "___" from _____.
(s) Subsequent to the execution and delivery of this Agreement there shall not have occurred any such case described in clause of the following: (i) trading in securities generally on the New York Stock Exchange, the American Stock Exchange or the over-the-counter market shall have been suspended or limited, or minimum prices shall have been established on either of such exchanges or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction or (ii), is in ) a general moratorium on commercial banking activities shall have been declared by Federal or New York State authorities or (iii) an outbreak or escalation of hostilities or a declaration by the judgment United States of the Representatives so material and adverse a national emergency or war or any other substantial national or international calamity or emergency as to make it it, in the reasonable judgment of a majority in interest of the several Underwriters, impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Pricing Prospectus;
(k) On or after the Applicable Time, there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the NYSE; (ii) a suspension or material limitation in trading in the Company’s securities on the NYSE; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Texas State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery Certificates on the terms and in the manner contemplated in the Prospectus;
(l) The Shares . All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be sold at such Time of Delivery shall have been duly admitted for trading and quotation on the NYSE;
(m) The Company shall have obtained and delivered to the Underwriters executed copies of a lock-up agreement from each of its directors and executive officers, the Selling Stockholders and each other stockholder identified on Schedule IV hereto, in the form attached as Annex I hereto;
(n) The Company shall have complied compliance with the provisions of Section 5(c) hereof with respect to the furnishing of prospectuses on the New York Business Day next succeeding the date of this Agreement; and
(o) The Company only if they are in form and the Selling Stockholders shall have furnished or caused to be furnished to you at such Time of Delivery certificates of officers of the Company and of the Selling Stockholders, respectively, substance reasonably satisfactory to you as to the accuracy of the representations and warranties of the Company and the Selling Stockholders, respectively, herein at and as of such Time of Delivery, as to the performance by the Company and the Selling Stockholders of all of their respective obligations hereunder to be performed at or prior to such Time of Delivery, and the Company shall have furnished or caused to be furnished certificates as to the matters set forth in subsections (a) of this Section and as to such other matters as you may reasonably request.
(p) The Company shall have furnished or caused to be furnished to you at such Time of Delivery a certificate of the Executive Vice President, Chief Financial Officer and Treasurer to the effect that:
(i) He is familiar with the internal accounting records of the Company.
(ii) He has reviewed the “Recent Developments” section contained in both the Preliminary Prospectus and the Prospectus. The information presented in such Recent Developments section (A) has been prepared in good faith and based upon assumptions that he believes are reasonable and consistent with the operations of the Company and (B) is a fair estimate in all material respects of the Company’s total revenues and net income counsel for the three months ended June 30, 2011 and has been derived from the Company’s accounting and/or financial recordsUnderwriters.
Appears in 1 contract
Conditions of Underwriters’ Obligations. The respective obligations of the Underwriters hereunderto purchase and pay for the Firm Shares as provided herein on the First Closing Date and, as with respect to the Shares to be delivered at each Time of DeliveryOption Shares, the Option Closing Date, shall be subjectsubject to the accuracy of the representations and warranties on the part of the Company set forth in Section 1 hereof and the Selling Stockholder set forth in Section 2 hereof as of the date hereof and as of the First Closing Date as though then made and, in their discretionwith respect to the Option Shares, as of the Option Closing Date as though then made, to the condition that all representations and warranties and other statements of the Company and of the Selling Stockholders herein are, at and as of such Time of Delivery, true and correct, the condition that timely performance by the Company and the Selling Stockholders shall have performed all Stockholder of its their respective covenants and their obligations hereunder theretofore to be performedhereunder, and to each of the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(a) hereof; all material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433 under the Act; if the Company has elected to rely upon Rule 462(b) under the Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m., Washington, D.C. time, on prior to the date execution of this Agreement, or at such later date as shall be consented to in writing by the Underwriters; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding proceedings for that purpose shall have been initiated or, to the Knowledge of the Company or any Underwriter, threatened by the Commission; no stop order suspending or preventing any request of the use of Commission for additional information (to be included in the Registration Statement, any Preliminary Prospectus, any Pricing Prospectus, the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission otherwise) shall have been complied with to your the satisfaction of Underwriters’ Counsel; the NASD shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements; and no amendment to the Registration Statement, any Preliminary Prospectus, any Pricing Prospectus, or the Prospectus to which the Underwriters or the Underwriters’ Counsel shall have reasonably objected, after having received reasonable satisfaction;notice of a proposal to file the same, shall have been filed.
(b) Xxxxx Xxxxx L.L.P.All corporate proceedings and other legal matters in connection with this Agreement, counsel for the Underwritersform of Registration Statement, any Preliminary Prospectus, any Pricing Prospectus, and the Prospectus and the registration, authorization, issue, sale and delivery of the Shares, shall have furnished to you such written opinion or opinions, dated such Time of Delivery, in form and substance been reasonably satisfactory to you, with respect to such matters as you may reasonably requestUnderwriters’ Counsel, and such counsel shall have received been furnished with such papers and information as they may reasonably request have requested to enable them to pass upon such matters;the matters referred to in this Section 8.
(c) Subsequent to the execution and delivery of this Agreement and prior to the First Closing Date, and on the Option Closing Date, as the case may be, there shall not have been any Material Adverse Effect which, in the sole judgment of Xxxxxxxx Curhan Ford & Co., is material and adverse and that makes it, in the sole judgment of Xxxxxxxx Curhan Ford & Co., impracticable or inadvisable to proceed with the public offering of the Shares as contemplated by the Prospectus.
(d) At the First Closing Date and on the Option Closing Date, as the case may be, the Underwriters shall have received from each of Holland & Knight LLP and Steptoe & Xxxxxxx LLP, co-counsel for the Company (“Company Co-Counsel”), a signed opinion dated as of such Closing Date, reasonably satisfactory to the Underwriters’ Counsel, in the form and substance of Exhibit B-1 annexed hereto, including a signed negative assurance statement dated as of such Closing Date, reasonably satisfactory to the Underwriters’ Counsel, in the form and substance reflected in Exhibit B-1.
(e) At the First Closing Date and on the Option Closing Date, as the case may be, the Underwriters shall have received from each of Xxxxxxxx Xxxxxx LLP and Holland & Xxxxxx L.L.P.Knight LLP, counsel for the CompanySelling Stockholder: (i) a signed opinion dated as of such Closing Date, in a form and substance reasonably satisfactory to the Underwriters’ Counsel.
(f) At the First Closing Date and on the Option Closing Date, as the case may be, the Underwriters shall have furnished received from Xxxx Prince Xxxxx LLP, Canadian counsel for each of the Subsidiaries (“Canadian Subsidiary Counsel”), a signed opinion dated as of such Closing Date, in a form and substance reasonably satisfactory to you their written opinionthe Underwriters’ Counsel.
(g) At the First Closing Date, and on the Option Closing Date, as the case may be, the Underwriters shall have received from Underwriters’ Counsel a signed opinion dated as of such Time Closing Date in a form and substance reasonably satisfactory to the Underwriters.
(h) The Underwriters shall have received, on each of Deliverythe date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to youthe Underwriters, from Xxxxxx LLP, independent public accountants, containing statements and information of the type ordinarily included in accountants' "comfort letters" with respect to the effect set forth financial statements and certain financial information contained in the Registration Statement, any Preliminary Prospectus, any Pricing Prospectus, and the Prospectus; provided, however, that the letter delivered on Annex IIthe Closing Date shall use a "cut-off date" not earlier than two business days before the Closing Date.
(di) Xxxxxxxx X. XxxxxThe Underwriters shall have received, General Counsel and Corporate Secretary on each of the Companydate hereof and the Closing Date, shall have furnished to you his written opiniona letter dated the date hereof or the Closing Date, dated such Time of Deliveryas the case may be, in form and substance satisfactory to youthe Underwriters, from each of KPMG LLP, Deloitte & Touche USA LLP, and Xxxxxx Xxxxxx Xxxxx LLP, independent public accountants, containing statements and information of the type ordinarily included in accountants' "comfort letters" with respect to the effect set forth certain Company acquisitions, as discussed in the Registration Statement, any Preliminary Prospectus, any Pricing Prospectus, and the Prospectus; provided that the letter delivered on Annex IIIthe Closing Date shall use a "cut-off date" not earlier than two business days before the Closing Date.
(ej) Xxxx Xxxxxxxxxx & Xxxxxxxxx LLPThe Underwriters shall have received on the First Closing Date and on the Option Closing Date, special Indiana counsel for as the case may be, a certificate of the Company, shall have furnished to you their written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex IV.
(f) Xxxxxx LLP, counsel for each of the Selling Stockholders, as indicated in Schedule IIA hereto, shall have furnished to you their written opinion with respect to each of the Selling Stockholders, dated the First Time Closing Date or the Option Closing Date, as the case may be, signed by the Chief Executive Officer and Chief Financial Officer of Deliverythe Company the effect that, and Xxxxxxxx Curhan Ford & Co. shall be satisfied that:
(i) The representations and warranties of the in this Agreement are true and correct, as if made on and as of the First Closing Date or the Option Closing Date, as the case may be, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the First Closing Date or the Option Closing Date, as the case may be;
(ii) When the Registration Statement became effective and at all times subsequent thereto up to the delivery of such certificate, the Registration Statement, the Pricing Prospectus and the Prospectus, and any amendments or supplements thereto, contained all material information required to be included therein by the Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Act and the applicable Rules and Regulations thereunder, and the Registration Statement, any Preliminary Prospectus, any Pricing Prospectus, and the Prospectus, and any amendments or supplements thereto, did not and does not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in form and substance satisfactory to you, to light of the effect set forth in Annex V.
circumstances under which they were made (g) Such local counsel as you shall reasonably require shall have furnished to you their written opinion except with respect to each of the foreign Selling StockholdersRegistration Statement), dated the First Time of Deliverynot misleading; and, in form and substance satisfactory to you, to the effect set forth in Annex VI.
(h) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on since the effective date of any post-effective amendment to the Registration Statement filed subsequent Statement, there has occurred no event required to the date of this Agreement and also at each Time of Delivery, UHY, LLP shall have furnished to you a letter be set forth in an amended or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;supplemented Prospectus which has not been so set forth; and
(iiii) On the date of the Prospectus at a time prior Subsequent to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, Flackman Xxxxxxx & Xxxxxx, P.A. shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) Neither the Company nor the Subsidiaries shall have sustained since the date of the latest audited financial statements included in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, other than as set forth or contemplated in the Pricing Prospectus and (ii) since the respective dates as of which information is given in the Registration Statement, any Preliminary Prospectus, any Pricing Prospectus Prospectus, and the Prospectus, there shall has not have been or occurred, as the case may be: (A) any Material Adverse Effect; (B) any transaction that is material to the Company and its Subsidiaries considered as a whole, except transactions entered into in the ordinary course of business; (C) any obligation, direct or contingent, that is material to the Company and its Subsidiaries considered as a whole, incurred by the Company or its subsidiaries, except obligations incurred in the ordinary course of business; (D) any change in the capital stock or long-term debt outstanding indebtedness of the Company or any of its Subsidiaries that is material to the Company and its Subsidiaries considered as a whole; (E) any dividend or distribution of any changekind declared, paid or any development involving a prospective change, in or affecting made on the general affairs, management, financial position, stockholders’ equity or results of operations capital stock of the Company or any of its Subsidiaries; or (F) any loss or damage (whether or not insured) to the property of the Company or any of its Subsidiaries which has been sustained or will have been sustained which has a Material Adverse Effect.
(k) The Underwriters shall have received on the First Closing Date, and on the Option Closing Date, as the case may be, a certificate of the Selling Stockholder, dated the First Closing Date or the Option Closing Date, as the case may be, signed by the Chief Executive Officer and Chief Financial Officer of the Selling Stockholder, to the effect that, and Xxxxxxxx Curhan Ford & Co. shall be satisfied that:
(i) The representations and warranties of the Selling Stockholder in this Agreement are true and correct, as if made on and as of the First Closing Date or the Option Closing Date, as the case may be, and the SubsidiariesSelling Stockholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the First Closing Date or the Option Closing Date, other than as set forth or contemplated in the case may be;
(ii) No information has come to the Selling Stockholder’s attention that causes the Selling Stockholder to believe that (i) the Registration Statement, any Preliminary Prospectus, any Pricing Prospectus, and the effect Prospectus, and any amendments or supplements thereto, includes any untrue statement of whicha material fact or omits to state a material fact therein to make the statements therein, in any such case described in clause light of the circumstances under which they were made (i) or except with respect to the Registration Statement), not misleading; and (ii), is in since the judgment effective date of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Pricing Prospectus;
(k) On or after the Applicable TimeRegistration Statement, there shall not have has occurred any of the following: (i) a suspension event required to be set forth in an amended or material limitation in trading in securities generally on the NYSEsupplemented Prospectus which has not been so set forth; (ii) a suspension or material limitation in trading in the Company’s securities on the NYSE; and
(iii) a general moratorium on commercial banking activities declared by either Federal or New York or Texas State authorities or a material disruption in commercial banking or securities settlement or clearance services Subsequent to the respective dates as of which information is given in the United StatesRegistration Statement, any Preliminary Prospectus, any Pricing Prospectus, and the Prospectus, no information has come to the Selling Stockholder’s attention that would cause the Selling Stockholder to believe that there has been or occurred, as the case may be: (a) any Material Adverse Effect; (ivb) any transaction that is material to the outbreak Company and its Subsidiaries considered as a whole, except transactions entered into in the ordinary course of business, (c) any obligation, direct or escalation of hostilities involving contingent, that is material to the United States or the declaration Company and its Subsidiaries considered as a whole, incurred by the United States Company or its Subsidiaries, except obligations incurred in the ordinary course of a national emergency or war or business, (vd) the occurrence of any other calamity or crisis or any change in financialthe capital stock or outstanding indebtedness of the Company or any of its Subsidiaries that is material to the Company and its Subsidiaries considered as a whole, political (e) any dividend or economic conditions in the United States or elsewhere, if the effect distribution of any such event specified in clause (iv) kind declared, paid or made on the capital stock of the Company or any of its Subsidiaries, or (vf) in any loss or damage (whether or not insured) to the judgment property of the Representatives makes it impracticable Company or inadvisable to proceed with the public offering any of its Subsidiaries which has been sustained or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus;will have been sustained which has a Material Adverse Effect.
(l) The Shares to be sold at such Time of Delivery shall have been duly admitted for trading and quotation on Except as set forth in Schedule 1(y), the NYSE;
(m) The Company shall have obtained and delivered to the Underwriters executed copies of a lock-up agreement from each of its directors and executive officersan agreement, the Selling Stockholders and each other stockholder identified on Schedule IV hereto, substantially in the form of either Exhibit A-1 or Exhibit A-2 attached as Annex I hereto;, from each officer and director of the Company, each owner of record of capital stock or options or warrants to acquire capital stock of the Company. All of the certificates representing the Shares shall have been tendered for delivery in accordance with the terms and provisions of this Agreement.
(m) The Shares shall be listed on the NASDAQ Global Market, subject only to official notice of issuance.
(n) The Company shall have complied with the provisions of Section 5(c) hereof this Agreement with respect to the furnishing of prospectuses on the New York Business Day next succeeding the date of this Agreement; andProspectuses.
(o) The Company On or before each of the First Closing Date and the Selling Stockholders Option Closing Date, as the case may be, the Underwriters and Underwriters’ Counsel shall have furnished or caused received such information, documents and opinions as they may reasonably require for the purposes of enabling them to be furnished to you at such Time of Delivery certificates of officers pass upon the issuance and sale of the Company and of the Selling StockholdersShares as contemplated herein, respectively, satisfactory or in order to you as to evidence the accuracy of any of the representations and warranties warranties, or the satisfaction of any of the conditions or agreements, herein contained.
(p) At least three business days prior to the date hereof, the Company and the Selling StockholdersStockholder shall have furnished for review by the Underwriters copies of the Custody Agreement executed by the Selling Stockholder and such further information, respectively, herein at certificates and documents as the Underwriters may reasonably request. If any condition specified in this Section 8 is not satisfied when and as of such Time of Deliveryrequired to be satisfied, as this Agreement may be terminated by the Underwriters by written notice to the performance by the Company and the Selling Stockholders of all of their respective obligations hereunder to be performed Stockholder at any time on or prior to such Time of Deliverythe First Closing Date and, and the Company shall have furnished or caused to be furnished certificates as with respect to the matters set forth Option Shares, at any time prior to the Option Closing Date, which termination shall be without liability on the part of any party to any other party, except for the expenses described in subsections (a) Section 12 of this Section and as to such other matters as you may reasonably requestAgreement.
(p) The Company shall have furnished or caused to be furnished to you at such Time of Delivery a certificate of the Executive Vice President, Chief Financial Officer and Treasurer to the effect that:
(i) He is familiar with the internal accounting records of the Company.
(ii) He has reviewed the “Recent Developments” section contained in both the Preliminary Prospectus and the Prospectus. The information presented in such Recent Developments section (A) has been prepared in good faith and based upon assumptions that he believes are reasonable and consistent with the operations of the Company and (B) is a fair estimate in all material respects of the Company’s total revenues and net income for the three months ended June 30, 2011 and has been derived from the Company’s accounting and/or financial records.
Appears in 1 contract
Sources: Underwriting Agreement (Applied Digital Solutions Inc)
Conditions of Underwriters’ Obligations. The obligations of the Underwriters hereunder, as hereunder are subject to the Shares to be delivered at each Time accuracy, when made and on the Delivery Date, of Deliverythe representations and warranties of the Company, shall be subject, in their discretionKACALP and the Adviser contained herein, to the condition that all representations and warranties and other statements of performance by the Company and of the Selling Stockholders herein areCompany, at and as of such Time of Delivery, true and correct, the condition that the Company KACALP and the Selling Stockholders shall have performed all Adviser of its and their respective obligations hereunder theretofore to be performedhereunder, and to each of the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(a) hereof6(a); all material filings required to be filed by Rule 497 of the Company pursuant to Rule 433(d) under the 1933 Act Rules and Regulations shall have been filed with the Commission made within the applicable time period periods prescribed for by such filing by Rule 433 under rules, and no such filings will have been made without the Act; if consent of the Company has elected to rely upon Rule 462(b) under the Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m., Washington, D.C. time, on the date of this AgreementRepresentatives; no stop order suspending the effectiveness of the Registration Statement or any part thereof amendment or supplement thereto, preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or suspending the qualification of the Series ___Notes for offering or sale in any jurisdiction shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; no stop order suspending and any request of the Commission for inclusion of additional information in the Registration Statement or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission otherwise shall have been complied with to your reasonable satisfaction;with.
(b) Xxxxx Xxxxx L.L.P.All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Indenture, the Auction Agreement, the Series ___Notes, the Registration Statement, any Preliminary Prospectus and the Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company shall have furnished to you such written opinion or opinions, dated such Time of Delivery, in form and substance reasonably satisfactory to you, with respect to such matters as you may reasonably request, and such counsel shall have received such papers all documents and information as that they may reasonably request to enable them to pass upon such matters;.
(c) Xxxxxx The Company shall have requested and caused Pxxx, Hxxxxxxx, Jxxxxxxx & Xxxxxx L.L.P.Wxxxxx LLP, counsel for the Company, to have furnished to the Underwriters their opinion, dated the Delivery Date and addressed to you, as Representatives of the several Underwriters, which opinion shall be substantially similar to those opinions delivered on or about December 14, 2005, in connection with the public offering of auction rate senior notes, Series E of the Company. As to matters of Maryland law, Pxxx, Hxxxxxxx, Jxxxxxxx & Wxxxxx LLP may rely on the opinion of Vxxxxxx LLP.
(d) You shall have received on the Delivery Date an opinion of Vxxxxxx LLP, Maryland counsel to the Company, dated the Delivery Date and addressed to you, as Representatives of the several Underwriters, which opinion shall be substantially similar to those opinions delivered on or about December 14, 2005, in connection with the public offering of auction rate senior notes, Series E of the Company.
(e) You shall have received on the Delivery Date an opinion of Dxxxx Xxxxxxxxxx, Esq., General Counsel for the Adviser and KACALP, dated the Delivery Date and addressed to you, as Representatives of the several Underwriters, which opinion shall be substantially similar to those opinions delivered on or about December 14, 2005, in connection with the public offering of auction rate senior notes, Series E of the Company.
(f) The Underwriters shall have received from , counsel to the Underwriters, such opinion or opinions, dated the Delivery Date, with respect to the issuance and sale of the Series ___Notes, the Indenture, the Registration Statement, any Preliminary Prospectus, the Prospectus and other related matters as the Underwriters may reasonably require, and the Company shall have furnished to you their written opinionsuch counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(g) The Company shall have requested and caused PricewaterhouseCoopers LLP to have furnished to the Underwriters, at the time of execution of this Agreement and at the Delivery Date, letters, dated such Time respectively as of Deliverythe time of execution of this Agreement and as of the Delivery Date, in form and substance satisfactory to you, to heretofore approved by the effect set forth on Annex II.
(d) Xxxxxxxx X. Xxxxx, General Counsel and Corporate Secretary of the Company, shall have furnished to you his written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex III.
(e) Xxxx Xxxxxxxxxx & Xxxxxxxxx LLP, special Indiana counsel for the Company, shall have furnished to you their written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex IV.
(f) Xxxxxx LLP, counsel for each of the Selling Stockholders, as indicated in Schedule IIA hereto, shall have furnished to you their written opinion with respect to each of the Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex V.
(g) Such local counsel as you shall reasonably require shall have furnished to you their written opinion with respect to each of the foreign Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex VIUnderwriters.
(h) On Each of the Company, KACALP and the Adviser shall have furnished to the Representatives a certificate, signed by the Chief Executive Officer and the principal financial or accounting officer of each of the Company, KACALP and by the manager of the Adviser, as the case may be, dated the Delivery Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Prospectus, any supplements or amendments to the Prospectus and this Agreement and that:
(i) The representations and warranties of the Company, KACALP and the Adviser in this Agreement are true and correct on and as of the Delivery Date with the same effect as if made on the Delivery Date and the Company, KACALP and the Adviser have complied with all the agreements and satisfied all the conditions on its part that are respectively required to be performed or satisfied by them at or prior to the Delivery Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted by the Commission or, to the knowledge of the Company, KACALP or the Adviser, threatened by the Commission; and
(iii) Since the date of the most recent financial statements included or incorporated by reference in the Prospectus (with respect to the certificate of the Company) and since the date of the Prospectus at a time prior (with respect to the execution certificate of this Agreementthe Adviser and KACALP), at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, UHY, LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;there has been no Material Adverse Effect.
(i) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, Flackman Xxxxxxx & Xxxxxx, P.A. The Company shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) Neither the Company nor the Subsidiaries shall not have sustained since the date of the latest audited financial statements included in the Pricing most recent Preliminary Prospectus and the Prospectus (A) any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, other than as set forth or contemplated in the Pricing Prospectus and (iiB) since the respective dates as of which information is given in the Pricing Prospectus such date, there shall not have been any change in the capital stock stock, short-term debt or long-term debt of the Company or the Subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholdersprospects, shareholders’ equity or results of operations of the Company and the SubsidiariesCompany, other otherwise than as set forth described or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (iA) or (iiB), is is, in the judgment of the Representatives Representatives, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares Series ___Notes being delivered at such Time of on the Delivery Date on the terms and in the manner contemplated in the Pricing most recent Preliminary Prospectus;, the Prospectus and in this Agreement.
(j) The Company shall have furnished to the Underwriters a report showing compliance with the asset coverage requirements of the 1940 Act and the 1940 Act Series ___Notes Asset Coverage (as defined in the Registration Statement), each dated the Delivery Date and in form and substance satisfactory to the Underwriters. Each such report shall assume the receipt of the net proceeds from the sale of the Series ___Notes and may use portfolio holdings and valuations as of the close of business of any day not more than six business days preceding the Delivery Date, provided, however, that the Company represents in such report that its total net assets as of the Delivery Date have not declined by 5% or more from such valuation date.
(k) On The Company shall have delivered and the Underwriters shall have received evidence satisfactory to it that the Series ___Notes are rated at least “[ ]” by Mxxxx’x Investors Service, Inc. and “[ ]” by Fitch, Inc., a division of the McGraw Hill Companies, as of the Delivery Date, and subsequent to the execution and delivery of this Agreement, (i) no downgrading shall have occurred in the rating accorded the Series ___Notes by any “nationally recognized statistical rating organization” as that term is defined by the Commission for purposes of Rule 436(g)(2) of the 1933 Act Rules and Regulations and (ii) no such organization shall have publicly announced that is has under surveillance or after review, with possible negative implications, its rating of the Applicable TimeSeries ___Notes.
(l) Neither the Company, KACALP nor the Adviser shall have failed at or prior to the Delivery Date to have performed or complied with any of the agreements contained herein and required to be performed or complied with by them at or prior to the Delivery Date.
(m) Subsequent to the execution and delivery of this Agreement there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the NYSE; New York Stock Exchange or the American Stock Exchange or in the over-the-counter market, or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a suspension banking moratorium shall have been declared by Federal or material limitation in trading in the Company’s securities on the NYSE; state authorities, (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Texas State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or States shall have become engaged in hostilities, there shall have been an escalation of in hostilities involving the United States or the there shall have been a declaration by the United States of a national emergency or war by the United States or (viv) there shall have occurred such a material adverse change in general economic, political or financial conditions (or the occurrence effect of international conditions on the financial markets in the United States shall be such), including, without limitation, as a result of terrorist activities after the date hereof, or any other calamity or crisis or any change in financialas to make it, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it Representatives, impracticable or inadvisable to proceed with the public offering or the delivery of the Shares Series ___Notes being delivered at on such Time of Delivery Date on the terms and in the manner contemplated in the Prospectus;
(l) The Shares to be sold at such Time of Delivery shall have been duly admitted for trading and quotation on the NYSE;
(m) The Company shall have obtained and delivered to the Underwriters executed copies of a lock-up agreement from each of its directors and executive officers, the Selling Stockholders and each other stockholder identified on Schedule IV hereto, in the form attached as Annex I hereto;.
(n) The Company Underwriters shall not have complied with the provisions of Section 5(c) hereof with respect discovered and disclosed to the furnishing Company on or prior to the Delivery Date that the Registration Statement, any Prospectus Supplement or the Prospectus or any amendment or supplement thereto contains an untrue statement of prospectuses on a fact which, in the New York Business Day next succeeding reasonable opinion of , counsel for the date Underwriters, is material or omits to state a fact which, in the reasonable opinion of this Agreement; andsuch counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(o) The Company Company, KACALP and the Selling Stockholders Adviser shall have furnished or caused to be furnished to you at the Underwriters such Time further certificates, documents and opinions of Delivery counsel as the Underwriters shall reasonably request (including certificates of officers of the Company Company, KACALP and of the Selling StockholdersAdviser). All opinions, respectivelyletters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to you as to the accuracy of the representations and warranties of the Company and the Selling Stockholders, respectively, herein at and as of such Time of Delivery, as to the performance by the Company and the Selling Stockholders of all of their respective obligations hereunder to be performed at or prior to such Time of Delivery, and the Company shall have furnished or caused to be furnished certificates as to the matters set forth in subsections (a) of this Section and as to such other matters as you may reasonably request.
(p) The Company shall have furnished or caused to be furnished to you at such Time of Delivery a certificate of the Executive Vice President, Chief Financial Officer and Treasurer to the effect that:
(i) He is familiar with the internal accounting records of the Company.
(ii) He has reviewed the “Recent Developments” section contained in both the Preliminary Prospectus and the Prospectus. The information presented in such Recent Developments section (A) has been prepared in good faith and based upon assumptions that he believes are reasonable and consistent with the operations of the Company and (B) is a fair estimate in all material respects of the Company’s total revenues and net income counsel for the three months ended June 30, 2011 and has been derived from the Company’s accounting and/or financial recordsUnderwriters.
Appears in 1 contract
Sources: Underwriting Agreement (Kayne Anderson MLP Investment CO)
Conditions of Underwriters’ Obligations. The obligations of the Underwriters hereunder, to purchase and pay for the Shares that they have severally agreed to purchase pursuant to this Agreement (including any Option Shares as to which the Shares to be delivered at each Time of Delivery, shall be subject, option granted in their discretion, to the condition that all representations and warranties and other statements of the Company and of the Selling Stockholders herein are, at and as of such Time of Delivery, true and correct, the condition that the Company Section 3 has been exercised and the Selling Stockholders shall have performed all of its and their obligations hereunder theretofore to be performed, and the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(a) hereof; all material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433 under the Act; if the Company has elected to rely upon Rule 462(b) under the Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m., Washington, D.C. time, on the date of this Agreement; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction;
(b) Xxxxx Xxxxx L.L.P., counsel for the Underwriters, shall have furnished to you such written opinion or opinions, dated such Time of Delivery, in form and substance reasonably satisfactory to you, with respect to such matters as you may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;
(c) Xxxxxx & Xxxxxx L.L.P., counsel for the Company, shall have furnished to you their written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex II.
(d) Xxxxxxxx X. Xxxxx, General Counsel and Corporate Secretary of the Company, shall have furnished to you his written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex III.
(e) Xxxx Xxxxxxxxxx & Xxxxxxxxx LLP, special Indiana counsel for the Company, shall have furnished to you their written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex IV.
(f) Xxxxxx LLP, counsel for each of the Selling Stockholders, as indicated in Schedule IIA hereto, shall have furnished to you their written opinion with respect to each of the Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex V.
(g) Such local counsel as you shall reasonably require shall have furnished to you their written opinion with respect to each of the foreign Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex VI.
(h) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, UHY, LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, Flackman Xxxxxxx & Xxxxxx, P.A. shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) Neither the Company nor the Subsidiaries shall have sustained since the date of the latest audited financial statements included in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, other than as set forth or contemplated in the Pricing Prospectus and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or the Subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and the Subsidiaries, other than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time Date of Delivery on determined by you is the terms and in same as the manner contemplated in the Pricing Prospectus;
(kClosing Time) On or after the Applicable Time, there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the NYSE; (ii) a suspension or material limitation in trading in the Company’s securities on the NYSE; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Texas State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus;
(l) The Shares to be sold at such Time of Delivery shall have been duly admitted for trading and quotation on the NYSE;
(m) The Company shall have obtained and delivered to the Underwriters executed copies of a lock-up agreement from each of its directors and executive officers, the Selling Stockholders and each other stockholder identified on Schedule IV hereto, in the form attached as Annex I hereto;
(n) The Company shall have complied with the provisions of Section 5(c) hereof with respect to the furnishing of prospectuses on the New York Business Day next succeeding the date of this Agreement; and
(o) The Company and the Selling Stockholders shall have furnished or caused to be furnished to you at such Time of Delivery certificates of officers of the Company and of the Selling Stockholders, respectively, satisfactory to you as are subject to the accuracy of the representations and warranties of the Company and the Selling StockholdersStockholders contained herein or in certificates of any officer of the Company delivered pursuant to the provisions hereof, respectively, herein at and as of such Time of Delivery, as to the performance by the Company and the Selling Stockholders of all of their respective obligations hereunder hereunder, and to the following further conditions:
(a) The Registration Statement shall have become effective not later than 5:30 P.M., eastern time, on the date of this Agreement or, with your consent, at a later time and date not later, however, than 5:30 P.M., eastern time, on the first business day following the date hereof, or at such later time or on such later date as you may agree to in writing; and at the Closing Time no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act and no proceedings for that purpose shall have been instituted or shall be pending or, to your knowledge or the knowledge of the Company shall be contemplated by the Commission, and any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of counsel for the Underwriters. If the Company has elected to rely upon Rule 430A, a prospectus containing the Rule 430A Information shall have been filed with the Commission in accordance with Rule 424(b) (or a post-effective amendment providing such information shall have been filed and declared effective in accordance with the requirements of Rule 430A).
(b) At the Closing Time you shall have received the opinions of (i) Richxxxx & X'Nexx, XXP, counsel for the Company and the Selling Stockholders, with respect to the Company, the Subsidiary, the Selling Stockholders and King Office Supply, Inc. (ii) Atlas Pearxxxx Xxxp & Brokson, P.A., counsel for the Company, with respect to the Acquisition Companies (other than King Office Supply, Inc.) and (iii) Coolxx, Xxrair P.C., counsel for the Subsidiary, with respect to the Subsidiary and the UDI Subsidiaries, together with signed or reproduced copies of such opinions for each of the other Underwriters, in form and substance satisfactory to Baker, Donelson, Bearman & Caldxxxx, xxunsel for the Underwriters and to be performed at or prior attached as Exhibit 7.b.
(c) At the Closing Time, you shall have received a favorable opinion from Baker, Donelson, Bearman & Caldxxxx, xxunsel for the Underwriters, dated as of the Closing Time, with respect to such Time of Deliverythe Registration Statement, the Prospectus and other related matters as the Underwriters may reasonably require, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(d) At the Closing Time,
(i) the Registration Statement, any 462(b) Registration Statement, and the Prospectus, as they may then be amended or caused supplemented, shall contain all statements that are required to be stated therein under the 1933 Act and the 1933 Act Regulations and in all material respects shall conform to the requirements of the 1933 Act and the 1933 Act Regulations, the Company shall have complied in all material respects with Rule 430A (if it shall have elected to rely thereon) and neither the Registration Statement, any 462(b) Registration Statement nor the Prospectus, as they may then be amended or supplemented, shall contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(ii) there shall not have been, since the respective dates as of which information is given in the Registration Statement, any change in the business, prospects, properties, assets, results of operation or condition (financial or otherwise) of the Company, whether or not arising in the ordinary course of business which would have a Material Adverse Effect;
(iii) no action, suit or proceeding at law or in equity before or by any federal, state or other commission, board or administrative agency shall be pending or, to the best of the Company's knowledge, threatened against the Company that would be required to be set forth in the Prospectus other than as set forth therein wherein an unfavorable decision, ruling or finding would have a Material Adverse Effect.
(iv) the Company and the Selling Stockholders shall have complied with all agreements and satisfied all conditions contained herein in all material respects on their respective parts to be performed or satisfied at or prior to the Closing Time; and
(v) the representations and warranties of the Company and the Selling Stockholders set forth in Section 1 and the representations and warranties of the Selling Stockholders set forth in Section 2 shall be accurate in all material respects as though expressly made at and as of the Closing Time. At the Closing Time, you shall have received certificates executed by the Selling Stockholders, the President and the Chief Financial Officer of the Company, dated as of the Closing Time, to such effect and with respect to the following additional matters:
(A) the Registration Statement has become effective under the 1933 Act and no stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Prospectus has been issued, and no proceedings for that purpose have been instituted or are pending or, to the best of their knowledge, threatened under the 1933 Act; and
(B) they have carefully reviewed the Registration Statement, any 462(b) Registration Statement and the Prospectus and when the Registration Statement and any 462(b) Registration Statement became effective and at all times subsequent thereto up to the delivery of such certificate, the Registration Statement, any 462(b) Registration Statement and the Prospectus and any amendments or supplements thereto contained all statements and information required to be included therein or necessary to make the statements therein in light of the circumstances in which they were made, not misleading and neither the Registration Statement, any 462(b) Registration Statement nor Prospectus and any amendment or supplement thereto included any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, and, since the effective date of the Registration Statement, there has occurred no event required to be set forth in an amended or supplemented Prospectus that has not been so set forth, and
(C) all representations, warranties, covenants and statements made herein by the Company and the Selling Stockholders, respectively, are true and correct in all material respects at such Closing Time, with the same effect as if made on and as of such Closing Time, and all agreements herein to be performed by the Company and the Selling Stockholders, respectively, on or prior to such Closing Time have been duly performed.
(e) On the business day immediately preceding the date of this Agreement and at the Closing Time you shall have received from Granx Xxxxxxxx, XXP, a letter or letters, dated the date hereof and as of the Closing Time in form and substance satisfactory to you, together with signed or reproduced copies of such letter for each of the other Underwriters, confirming that they are independent public accountants with respect to the Company within the meaning of the 1933 Act and 1933 Act Regulations, stating in effect that:
(i) in their opinion, the financial statements and any supplementary financial information and schedules included in the Registration Statement and covered by their opinion therein comply as to form in all material respects with the applicable accounting requirements of the 1933 Act and the 1933 Act Regulations;
(ii) on the basis of limited procedures (set forth in detail in such letter and made in accordance with such procedures as may be reasonably specified by you) not constituting an audit in accordance with generally accepted auditing standards, consisting of (but not limited to) a reading of the latest available internal unaudited financial statements of the Office Centre Companies , a reading of minute books of the Office Centre Companies , inquiries of officials of the Company responsible for financial and accounting matters, and such other inquiries and procedures, as may be specified in such letter, nothing has come to their attention which caused them to believe that:
(A) the unaudited financial statements and supporting schedules and other unaudited financial data of the Company included in the Registration Statement do not comply as to form in all material respects with the applicable accounting requirements of the 1933 Act or the 1933 Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included in the Registration Statement;
(B) the amounts of revenues, income before income taxes, net income and net income per share for the three fiscal years ended December 31, 1997 included in the Prospectus under the caption "Prospectus Summary -- Summary Combined Historical and Pro Forma Financial Data" do not agree with the corresponding amounts in the audited statements of earnings;
(C) at a specified date not more than five business days prior to the date of delivery of such letter, there was any change in the capital stock or long-term debt or obligations under capital leases of the Company other than scheduled repayments or any decreases in total assets, Stockholders' equity or other items specified by the Underwriters from that set forth in the Consolidated Balance Sheet at December 31, 1997, included in the Prospectus, except as described in such letter;
(D) for the period from December 31, 1997, to a specified date not more than five days prior to the date of delivery of such letter, there were any decreases in revenues, gross profit, or the total or per share amounts of income before extraordinary items or net income, of the Company, in each case as compared with the corresponding period of the preceding year, except in each case for decreases or increases which the Prospectus discloses have occurred or may occur or which are described in such letter; and
(iii) in addition to the procedures referred to in clause (ii) above and the examination referred to in their opinions included in the Registration Statement, they have carried out certain specific procedures, not constituting an audit in accordance with generally accepted auditing standards, with respect to certain amounts, percentages and financial information specified by you which are derived from the general accounting records of the Company, which appear in the Registration Statement or the exhibits or schedules thereto and are specified by you, and have compared such amounts, percentages and financial information with the accounting records of the Company and with material derived from such records and have found them to be in agreement.
(f) At the Closing Time, you shall have received from Granx Xxxxxxxx, LLP a letter, in form and substance satisfactory to you and dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (e) above, except that the specified date referred to shall be a date not more than five business days prior to the Closing Time.
(g) In the event that either of the letters to be delivered pursuant to subsections (e) and (f) above sets forth any such changes, decreases or increases, it shall be a further condition to your obligations that you shall have determined, after discussions with officers of the Company responsible for financial and accounting matters and with Granx Xxxxxxxx, XXP, that such changes, decreases or increases as are set forth in such letters do not reflect a material adverse change in the capital stock, long-term debt, obligations under capital leases, total assets, or Stockholders' equity of the Company as compared with the amounts shown in the latest condensed consolidated balance sheet of the Company, or a material adverse change in revenues or the total or per share amounts of income before extraordinary items or net income, of the Company, in each case as compared with the corresponding period of the prior year.
(h) At the Closing Time, counsel for the Underwriters shall have been furnished with all such documents, certificates and opinions as they may reasonably request for the purpose of enabling them to pass upon the issuance and sale of the Shares as contemplated in this Agreement and the matters referred to in Section 7(d) and in order to evidence the accuracy and completeness of any of the representations and warranties or statements of the Company, the performance of any of the covenants of the Company, or the fulfillment of any of the conditions herein contained; and all proceedings taken by the Company at or prior to the Closing Time in connection with the authorization, issuance and sale of the Shares as contemplated in this Agreement shall be reasonably satisfactory in form and substance to you and to counsel for the Underwriters. The Company will furnish you with such number of conformed copies of such opinion, certificates, letters and documents as you shall request.
(i) The NASD, upon review of the terms of the public offering of the Shares, shall not have objected to such offering, such terms or the Underwriters' participation in the same.
(j) The Firm Shares and the Option Shares, if any, shall have been approved for listing on NSM upon official notice of the issuance, sale and evidence of satisfactory distribution thereof pursuant to this underwritten public offering.
(k) Each executive officer, director and stockholder of the Company specified in Section 1(j) hereof shall have agreed in writing as to the matters set forth in subsections (a) such section. If any of the conditions specified in this Section 7 shall not have been fulfilled in any material respect when and as to such other matters as you may reasonably request.
(p) The Company shall have furnished or caused required by this Agreement to be furnished fulfilled, this Agreement may be terminated by you on notice to you at such Time of Delivery a certificate of the Executive Vice President, Chief Financial Officer and Treasurer to the effect that:
(i) He is familiar with the internal accounting records of the Company.
(ii) He has reviewed the “Recent Developments” section contained in both the Preliminary Prospectus and the Prospectus. The information presented in such Recent Developments section (A) has been prepared in good faith and based upon assumptions that he believes are reasonable and consistent with the operations of the Company and (B) is a fair estimate the Selling Stockholders at any time at or prior to the Closing Time, and such termination shall be without liability of any party to any other party. Notwithstanding any such termination, the provisions of Section 9 shall remain in all material respects effect and shall survive the term of the Company’s total revenues and net income for the three months ended June 30, 2011 and has been derived from the Company’s accounting and/or financial recordsthis Agreement.
Appears in 1 contract
Conditions of Underwriters’ Obligations. The Company, the Bank and the Representative agree that the issuance and the sale of Shares and the issuance and sale of the shares of Common Stock in the Subscription Offering and the Community Offering and all obligations of the Underwriters hereunder, as hereunder are subject to the Shares to be delivered at each accuracy of the representations and warranties of the Company and the Bank herein contained as of the date hereof and the Time of Delivery, shall be subject, in their discretion, to the condition that all representations accuracy of the statements of officers and warranties and other statements directors of the Company and of the Selling Stockholders herein areBank made pursuant to the provisions hereof, at and as of such Time of Delivery, true and correct, to the condition that performance by the Company and the Selling Stockholders shall have performed all Bank of its and their obligations hereunder theretofore to be performedhereunder, and to the following additional further conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Securities Act Regulations and in accordance with Section 5(a3(a) hereof; all material required to be filed by the Company pursuant to Rule 433(d) under the Act hereof (or a post-effective amendment shall have been filed and declared effective in accordance with the Commission within the applicable time period prescribed for such filing by requirements of Rule 433 under the Act; if the Company has elected to rely upon Rule 462(b) under the Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m., Washington, D.C. time, on the date of this Agreement430A); no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission or the FRB shall have been complied with to your the Representative’s reasonable satisfaction;; FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements; and no order suspending the sale of the Shares in any jurisdiction shall have been issued.
(b) Xxxxx Xxxxx L.L.P.At Time of Delivery, the Representative shall have received:
(1) The favorable opinion, dated as of Time of Delivery, of Silver, Xxxxxxxx, Taff & Xxxxxxx, LLP, counsel for the Underwriters, shall have furnished to you such written opinion or opinions, dated such Time of Delivery, in form Company and substance reasonably satisfactory to you, with respect to such matters as you may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;
(c) Xxxxxx & Xxxxxx L.L.P., counsel for the Company, shall have furnished to you their written opinion, dated such Time of DeliveryBank, in form and substance satisfactory to youcounsel for the Representative as attached hereto as Exhibit A.
(2) The favorable opinion, dated as of Time of Delivery, of Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C., counsel for the Representative, as to such matters as the Representative shall reasonably require.
(3) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, Silver, Xxxxxxxx, Taff & Xxxxxxx, LLP and Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time it became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective or at Time of Delivery, or (if applicable) that the General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, Silver, Xxxxxxxx, Taff & Xxxxxxx, LLP and Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. may rely as to matters of fact on certificates of officers and directors of the Company, and the Bank and certificates of public officials. Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. may also rely on the opinion of Silver, Xxxxxxxx, Taff & Xxxxxxx, LLP.
(c) At Time of Delivery referred to in Section 2 hereof, the Company and the Bank shall have completed in all material respects with the conditions precedent to the effect set forth on Annex IIConversion in accordance with the Plan, the applicable FRB Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company or the Bank by the Federal Reserve Board, or any other regulatory authority other than those which the Federal Reserve Board permits to be completed after the Conversion.
(d) Xxxxxxxx X. Xxxxx, General Counsel and Corporate Secretary of the Company, shall have furnished to you his written opinion, dated such At Time of Delivery, in form and substance satisfactory to youthere shall not have been, to the effect set forth on Annex III.
(e) Xxxx Xxxxxxxxxx & Xxxxxxxxx LLP, special Indiana counsel for the Company, shall have furnished to you their written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex IV.
(f) Xxxxxx LLP, counsel for each of the Selling Stockholders, as indicated in Schedule IIA hereto, shall have furnished to you their written opinion with respect to each of the Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex V.
(g) Such local counsel as you shall reasonably require shall have furnished to you their written opinion with respect to each of the foreign Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex VI.
(h) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, UHY, LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, Flackman Xxxxxxx & Xxxxxx, P.A. shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) Neither the Company nor the Subsidiaries shall have sustained since the date of the latest audited financial statements included in the Pricing Prospectus any loss hereof or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, other than as set forth or contemplated in the Pricing Prospectus and (ii) since the respective dates as of which information is given in the Pricing Prospectus Registration Statement and the Prospectus, any Material Adverse Effect, whether or not arising in the ordinary course of business and the Representative shall have received a certificate of the Chief Executive Officer and President of the Company and the Bank and the Chief Financial Officer of the Company and the Bank, dated as of Time of Delivery, to the effect that (i) there has been no such material adverse change, (ii) there shall not have been any change in no material transaction entered into by the capital stock Company or long-term debt the Bank from the latest date as of which the financial condition of the Company or the Subsidiaries Bank, as set forth in the Registration Statement and the Prospectus other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice (iii) neither the Company nor the Bank shall have received from the Federal Reserve Board, the WDFI or the FDIC any changeorder or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Representative) or which materially and adversely would affect the business, financial condition, results of operations or business of the Company or the Bank, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Time of Delivery, (v) each of the Company and the Bank have complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to Time of Delivery, including all agreements and all conditions set forth in the Agency Agreement, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Commission and (vii) no order suspending the Federal Reserve Board’s approval of the Conversion Application, or the transactions contemplated thereby, has been issued and no proceedings for that purpose have been initiated or threatened by the Federal Reserve Board and no person has sought to obtain regulatory or judicial review of the action of the Federal Reserve Board in approving the Plan in accordance with the FRB Regulations nor has any development involving person sought to obtain regulatory or judicial review of the action of the Federal Reserve Board in approving the Conversion Application.
(e) At the Time of Delivery, the Representative shall have received a prospective changecertificate of the Chief Executive Officer and President of the Company and the Bank and the Chief Financial Officer of the Company and the Bank, dated as of Time of Delivery, to the effect that (i) they have reviewed the contents of the Registration Statement and the Prospectus; (ii) based on each of their knowledge, the Registration Statement and the Prospectus do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in or affecting light of the general affairscircumstances under which such statements were made, managementnot misleading; and (iii) based on each of their knowledge, the financial position, stockholders’ equity or statements and other financial information included in the Registration Statement and the Prospectus fairly present the financial condition and results of operations of the Company and the SubsidiariesBank as of and for the dates and periods covered by the Registration Statement and the Prospectus.
(f) As of the date hereof, other than the Representative shall have received from Xxxx Xxxxx LLP a letter dated such date, in form and substance satisfactory to the Representative, to the effect that: (i) they are independent public accountants with respect to the Company and the Bank within the meaning of the Code of Ethics of the AICPA, the Securities Act and the Securities Act Regulations and the FRB Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the Xxxxxxxx-Xxxxx Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Xxxxxxxxx, including any post-effective amendment thereto, and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Representative and Xxxx Xxxxx LLP set forth or contemplated in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and supporting schedules of the Bank included in the Pricing Registration Statement do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act, the Securities Act Regulations and the FRB Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data” in the Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited financial statements included in the Registration Statement, (C) at a specified date not more than five (5) business days prior to the date of this Agreement, there has been any increase in the consolidated long term or short term debt of the Bank or any decrease in consolidated total assets, the allowance for loan losses, total deposits or net worth of the Bank, in each case as compared with the amounts shown in the December 31, 2013 consolidated statements of financial condition included in the Registration Statement or, (D) during the period from December 31, 2013 to a specified date not more than five (5) business days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Bank, except in all instances for increases or decreases which the Registration Statement and the Prospectus disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information that are included in the Registration Statement and Prospectus and that are specified by the Representative, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Company and the Bank identified in such letter.
(g) The “lock-up” agreements, each substantially in the form of Exhibit B hereto, between the Representative and the persons set forth on Exhibit C hereto, relating to sales and certain other dispositions of shares of Common Stock or certain other securities, shall be delivered to the Representative on or before the date hereof and shall be in full force and effect on the Time of Delivery.
(h) At Time of Delivery, the Representative shall have received from Xxxx Xxxxx LLP a letter, dated as of Time of Delivery, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to Time of Delivery.
(i) At Time of Delivery, the Securities shall have been approved for quotation on the Nasdaq Capital Market upon notice of issuance.
(j) At Time of Delivery, the Representative shall have received a letter from the Appraiser, dated as of the Time of Delivery, confirming its Appraisal.
(k) At Time of Delivery, counsel for the Representative shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities, including the Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities, including the Shares as herein contemplated shall be satisfactory in form and substance to the Representative and counsel for the Representative.
(l) At any time prior to Time of Delivery, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives Representative, are so material and adverse as to make it impracticable to market the Shares or inadvisable to proceed with enforce contracts, including subscriptions or orders, for the public offering sale of the Securities, and (ii) trading generally on either the American Stock Exchange, the New York Stock Exchange or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Pricing Prospectus;
(k) On or after the Applicable Time, there Nasdaq Stock Market shall not have occurred any been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either of said Exchanges or by order of the following: (i) Commission or any other governmental authority, and a suspension or material limitation in trading in securities generally on the NYSE; (ii) a suspension or material limitation in trading in the Company’s securities on the NYSE; (iii) a general banking moratorium on commercial banking activities shall not have been declared by either Federal or New York or Texas State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus;
(l) The Shares to be sold at such Time of Delivery shall have been duly admitted for trading and quotation on the NYSE;
(m) The Company shall have obtained and delivered to the Underwriters executed copies of a lock-up agreement from each of its directors and executive officers, the Selling Stockholders and each other stockholder identified on Schedule IV hereto, in the form attached as Annex I hereto;
(n) The Company shall have complied with the provisions of Section 5(c) hereof with respect to the furnishing of prospectuses on the New York Business Day next succeeding the date of this Agreement; and
(o) The Company and the Selling Stockholders shall have furnished or caused to be furnished to you at such Time of Delivery certificates of officers of the Company and of the Selling Stockholders, respectively, satisfactory to you as to the accuracy of the representations and warranties of the Company and the Selling Stockholders, respectively, herein at and as of such Time of Delivery, as to the performance by the Company and the Selling Stockholders of all of their respective obligations hereunder to be performed at or prior to such Time of Delivery, and the Company shall have furnished or caused to be furnished certificates as to the matters set forth in subsections (a) of this Section and as to such other matters as you may reasonably requestWashington authorities.
(p) The Company shall have furnished or caused to be furnished to you at such Time of Delivery a certificate of the Executive Vice President, Chief Financial Officer and Treasurer to the effect that:
(i) He is familiar with the internal accounting records of the Company.
(ii) He has reviewed the “Recent Developments” section contained in both the Preliminary Prospectus and the Prospectus. The information presented in such Recent Developments section (A) has been prepared in good faith and based upon assumptions that he believes are reasonable and consistent with the operations of the Company and (B) is a fair estimate in all material respects of the Company’s total revenues and net income for the three months ended June 30, 2011 and has been derived from the Company’s accounting and/or financial records.
Appears in 1 contract
Conditions of Underwriters’ Obligations. The several obligations of the Underwriters hereunderto purchase and pay for the Firm Shares and the Additional Shares, as to the Shares to be delivered at each Time of Deliveryprovided herein, shall be subjectsubject to the accuracy of the representations and warranties of the Company herein contained, in their discretionas of the date hereof and as of the Closing Date (for purposes of this Section 7, “Closing Date” shall refer to the Closing Date for the Firm Shares and any Additional Closing Date, if different, for the Additional Shares), to the condition that all representations and warranties and other statements of performance by the Company and of the Selling Stockholders herein are, at and as of such Time of Delivery, true and correct, the condition that the Company and the Selling Stockholders shall have performed all of its and their obligations hereunder theretofore to be performedhereunder, and to each of the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in a timely fashion in accordance with Section 5(a4(a) hereof; all material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433 under the Act; if the Company has elected to rely upon Rule 462(b) under the Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m., Washington, D.C. time, on the date of this Agreement; no stop order suspending the effectiveness of the Registration Statement or any part thereof post-effective amendment thereto, and no stop order suspending or preventing the use of any Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus, shall have been issued by the Commission and no proceeding for that purpose proceedings therefor shall have been initiated or threatened by the Commission; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction;; if the Company has elected to rely on Rule 462(b) under the Securities Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m. (Washington, D.C. time) on the date of this Agreement; and all necessary domestic regulatory or stock exchange approvals shall have been received.
(b) Xxxxx Xxxxx L.L.P., counsel for At the Underwriters, shall have furnished to Closing Date you such written opinion or opinions, dated such Time of Delivery, in form and substance reasonably satisfactory to you, with respect to such matters as you may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;
(c) Xxxxxx & Xxxxxx L.L.P.the written opinion of Axxxxxx Xxxxx, LLP, counsel for the Company, shall have furnished to you their written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex II.
(d) Xxxxxxxx X. Xxxxx, General Counsel and Corporate Secretary of the Company, shall have furnished to you his written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex III.
(e) Xxxx Xxxxxxxxxx Hxxxx & Xxxxxxxxx Hxxxxxx LLP, special Indiana Maryland counsel for the Company, shall have furnished to you their written opinion, dated such Time of Delivery, in form the Closing Date and substance satisfactory to you, addressed to the effect set forth on Annex IV.
(f) Xxxxxx LLP, counsel for each of the Selling Stockholders, as indicated in Schedule IIA hereto, shall have furnished to you their written opinion with respect to each of the Selling Stockholders, dated the First Time of DeliveryUnderwriters, in form and substance satisfactory to you, to the effect set forth in Exhibit A and Exhibit B, respectively, of Annex V.I hereto.
(gc) Such local counsel as At the Closing Date, you shall reasonably require shall have furnished to you their received the written opinion with respect to each of the foreign Selling StockholdersUnderwriters’ Counsel, dated the First Time of DeliveryClosing Date and addressed to the Underwriters, in form and substance satisfactory to you, with respect to the effect set forth in Annex VI.
(h) On the date issuance and sale of the Prospectus at a time prior to the execution of this AgreementShares, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to Statement, the date of this Agreement Pricing Disclosure Package, the Prospectus and also at each Time of Deliverysuch other matters as you may require, UHY, LLP and the Company shall have furnished to Underwriters’ Counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(d) At the Closing Date you shall have received a letter or letterscertificate of the Chief Executive Officer and Chief Financial Officer of the Company, dated the respective dates of delivery thereofClosing Date, in form and substance satisfactory to you;
(i) On , as to the accuracy of the representations and warranties of the Company set forth in Section 1 hereof as of the date hereof and as of the Prospectus Closing Date, as to the performance by the Company of all of its obligations hereunder to be performed at a time or prior to the execution Closing Date, as to the matters set forth in subsections (a), (f) and (g) of this AgreementSection 7, and as to such other matters as you may reasonably request.
(e) At the time this Agreement is executed and at 9:30 a.m.the Closing Date, New York City timeyou shall have received a comfort letter, on from Ernst & Young LLP, independent public accountants for the effective date Company, dated, respectively, as of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time as of Deliverythe Closing Date, Flackman Xxxxxxx & Xxxxxx, P.A. shall have furnished addressed to you a letter or letters, dated the respective dates of delivery thereof, Underwriters and in form and substance satisfactory to you;the Underwriters and Underwriters’ Counsel.
(f) (i) Neither the Company nor the Subsidiaries any Subsidiary shall have sustained sustained, since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus Prospectus, any material loss or interference with its business or properties from fire, explosion, flood flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or court any legal or governmental action, order or decreeproceeding, other than as set forth or contemplated in the Pricing Prospectus (exclusive of any supplement thereto); and (ii) since subsequent to the respective dates as of which information is given in the Registration Statement (exclusive of any amendment thereto subsequent to the date hereof) and the Pricing Prospectus (exclusive of any supplement thereto), there shall not have been any change in the capital stock or long-term or short-term debt of the Company or the Subsidiaries any Subsidiary or any change, change or any development involving a prospective change, whether or not arising from transactions in or affecting the ordinary course of business, in the business, general affairs, management, condition (financial positionor otherwise), results of operations, stockholders’ equity equity, properties or results of operations prospects of the Company and the Subsidiaries, other than individually or taken as set forth or contemplated in the Pricing Prospectusa whole, the effect of which, in any such case described in clause (i) or (ii)above, is is, in the judgment of the Representatives Representatives, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery Offering on the terms and in the manner contemplated in the Pricing Prospectus;Prospectus (exclusive of any such supplement).
(kg) On or after the Applicable Time, there (i) no downgrading shall not have occurred in the rating accorded the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization”, as such term is defined by the Commission for purposes of Rule 436(g)(2) under the Securities Act, and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the following: (i) a suspension or material limitation in trading in securities generally on the NYSE; (ii) a suspension or material limitation in trading in the Company’s debt securities on the NYSE; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Texas State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus;preferred stock.
(lh) The Shares to be sold at such Time of Delivery You shall have been received a duly admitted for trading and quotation on the NYSE;
(m) The Company shall have obtained and delivered to the Underwriters executed copies of a lock-up agreement from each person who is a director or officer of its directors and executive officers, the Selling Stockholders Company and each shareholder and other stockholder identified person or entity listed on Schedule IV II hereto, in each case substantially in the form attached hereto as Annex I hereto;II.
(ni) The Company At the Closing Date, the Shares shall have complied with been approved for listing, upon notice of issuance, on the provisions of Section 5(cNYSE.
(j) hereof At the Closing Date, the FINRA shall have confirmed that it has not raised any objection with respect to the furnishing fairness and reasonableness of prospectuses on the New York Business Day next succeeding underwriting terms and arrangements for the date of this Agreement; andOffering.
(ok) The Company and At the Selling Stockholders Closing Date, you shall have furnished or caused to be furnished to you at received a certificate, dated such Time Closing Date, of Delivery certificates of officers Pxxxxxx X. Xxxxxxx, Executive Vice President and Chief Financial Officer of the Company and of Compamy, substantially in the Selling Stockholders, respectively, satisfactory to you as to the accuracy of the representations and warranties of the Company and the Selling Stockholders, respectively, herein at and as of such Time of Delivery, as to the performance by the Company and the Selling Stockholders of all of their respective obligations hereunder to be performed at or prior to such Time of Delivery, and the Company shall have furnished or caused to be furnished certificates as to the matters form set forth in subsections (a) of this Section and as to such other matters as you may reasonably requestAnnex IV hereto.
(pl) The Company shall have furnished the Underwriters and Underwriters’ Counsel with such other certificates, opinions or caused to be other documents as they may have reasonably requested. If any of the conditions specified in this Section 7 shall not have been fulfilled when and as required by this Agreement, or if any of the certificates, opinions, written statements or letters furnished to you at such Time of Delivery a certificate or to Underwriters’ Counsel pursuant to this Section 7 shall not be satisfactory in form and substance to the Representatives and to Underwriters’ Counsel, all obligations of the Executive Vice PresidentUnderwriters hereunder may be cancelled by the Representatives at, Chief Financial Officer or at any time prior to, the Closing Date and Treasurer the obligations of the Underwriters to purchase the Additional Shares may be cancelled by the Representatives at, or at any time prior to, the Additional Closing Date. Notice of such cancellation shall be given to the effect that:
(i) He is familiar with the internal accounting records of the CompanyCompany in writing or by telephone. Any such telephone notice shall be confirmed promptly thereafter in writing.
(ii) He has reviewed the “Recent Developments” section contained in both the Preliminary Prospectus and the Prospectus. The information presented in such Recent Developments section (A) has been prepared in good faith and based upon assumptions that he believes are reasonable and consistent with the operations of the Company and (B) is a fair estimate in all material respects of the Company’s total revenues and net income for the three months ended June 30, 2011 and has been derived from the Company’s accounting and/or financial records.
Appears in 1 contract
Conditions of Underwriters’ Obligations. The Company, the Mid-Tier Company, the MHC, the Bank and the Representative agree that the issuance and the sale of Shares and the issuance and sale of the shares of Common Stock in the Subscription Offering and the Community Offering and the issuance of the Exchange Shares and all obligations of the Underwriters hereunder, as hereunder are subject to the Shares to be delivered at each accuracy of the representations and warranties of the Company, the Mid-Tier Company, the MHC and the Bank herein contained as of the date hereof and the Time of Delivery, shall be subjectto the accuracy of the statements of officers and directors of the Company, in their discretionthe Mid-Tier Company, the MHC and the Bank made pursuant to the provisions hereof, to the condition that all representations and warranties and other statements of performance by the Company and of the Selling Stockholders herein are, at and as of such Time of Delivery, true and correctCompany, the condition that Mid-Tier Company, the Company MHC and the Selling Stockholders shall have performed all Bank of its and their obligations hereunder theretofore to be performedhereunder, and to the following additional further conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Securities Act Regulations and in accordance with Section 5(a3(a) hereof; all material required to be filed by the Company pursuant to Rule 433(d) under the Act hereof (or a post-effective amendment shall have been filed and declared effective in accordance with the Commission within the applicable time period prescribed for such filing by requirements of Rule 433 under the Act; if the Company has elected to rely upon Rule 462(b) under the Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m., Washington, D.C. time, on the date of this Agreement430A); no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission or the FRB shall have been complied with to your the Representative’s reasonable satisfaction;; FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements; and no order suspending the sale of the Shares in any jurisdiction shall have been issued.
(b) Xxxxx Xxxxx L.L.P., counsel for the Underwriters, shall have furnished to you such written opinion or opinions, dated such At Time of Delivery, in form and substance reasonably satisfactory to you, with respect to such matters as you may reasonably request, and such counsel the Representative shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;received:
(c1) Xxxxxx The favorable opinion, dated as of Time of Delivery, of Xxxxxxxxxx Xxxxxxxx & Xxxxxx L.L.P.Xxxxxxxx LLP, counsel for the Company, shall have furnished to you their written opinionthe Mid-Tier Company, dated such Time of Deliverythe MHC and the Bank, in form and substance satisfactory to youcounsel for the Representative as attached hereto as Exhibit A.
(2) The favorable opinion, dated as of Time of Delivery, of Xxxxxx & Xxxxxx LLP, counsel for the Representative, as to such matters as the Representative shall reasonably require.
(3) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, Xxxxxxxxxx Xxxxxxxx & Xxxxxxxx LLP and Xxxxxx & Xxxxxx LLP shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time it became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective or at Time of Delivery, or (if applicable) that the General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, Xxxxxxxxxx Xxxxxxxx & Xxxxxxxx LLP and Xxxxxx & Xxxxxx LLP may rely as to matters of fact on certificates of officers and directors of the Company, the Mid-Tier Company, the MHC and the Bank and certificates of public officials. Xxxxxx & Xxxxxx LLP may also rely on the opinion of Xxxxxxxxxx Xxxxxxxx & Xxxxxxxx LLP.
(c) At Time of Delivery referred to in Section 2 hereof, the Company, the Mid-Tier Company, the MHC and the Bank shall have completed in all material respects the conditions precedent to the effect set forth on Annex IIConversion in accordance with the Plan, the applicable FRB Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company, the Mid-Tier Company, the MHC or the Bank by the FRB, or any other regulatory authority other than those which the FRB permits to be completed after the Conversion.
(d) Xxxxxxxx X. Xxxxx, General Counsel and Corporate Secretary of the Company, shall have furnished to you his written opinion, dated such At Time of Delivery, in form and substance satisfactory to youthere shall not have been, to the effect set forth on Annex III.
(e) Xxxx Xxxxxxxxxx & Xxxxxxxxx LLP, special Indiana counsel for the Company, shall have furnished to you their written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex IV.
(f) Xxxxxx LLP, counsel for each of the Selling Stockholders, as indicated in Schedule IIA hereto, shall have furnished to you their written opinion with respect to each of the Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex V.
(g) Such local counsel as you shall reasonably require shall have furnished to you their written opinion with respect to each of the foreign Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex VI.
(h) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, UHY, LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, Flackman Xxxxxxx & Xxxxxx, P.A. shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) Neither the Company nor the Subsidiaries shall have sustained since the date of the latest audited financial statements included in the Pricing Prospectus any loss hereof or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, other than as set forth or contemplated in the Pricing Prospectus and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been Registration Statement and the Prospectus, any material adverse change in the capital stock financial condition, results of operations, business affairs or long-term debt prospects of the Company Company, the Mid-Tier Company, the MHC and the Bank, considered as one enterprise, whether or not arising in the ordinary course of business and the Representative shall have received a certificate of the Chief Executive Officer of the Company, the Mid-Tier Company, the MHC and the Bank and the Chief Financial Officer of the Company, the Mid-Tier Company, the MHC and the Bank, dated as of Time of Delivery, to the effect that (i) there has been no such material adverse change, (ii) there shall have been no material transaction entered into by the Company, the Mid-Tier Company, the MHC or the Subsidiaries Bank from the latest date as of which the financial condition of the Company, the Mid-Tier Company, the MHC or the Bank, as set forth in the Registration Statement and the Prospectus other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice (iii) neither the Company, the Mid-Tier Company, the MHC nor the Bank shall have received from the FRB, the OCC or the FDIC any changeorder or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Representative) or which materially and adversely would affect the business, financial condition, results of operations or prospects of the Company, the Mid-Tier Company, the MHC or the Bank, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Time of Delivery, (v) each of the Company, the Mid-Tier Company, the MHC and the Bank have complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to Time of Delivery, including all agreements and all conditions set forth in the Agency Agreement, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Commission and (vii) no order suspending the FRB’s approval of the Conversion Application, the Holding Company Application or the transactions contemplated thereby, has been issued and no proceedings for that purpose have been initiated or threatened by the FRB and no person has sought to obtain regulatory or judicial review of the action of the FRB in approving the Plan in accordance with the FRB Regulations nor has any development involving person sought to obtain regulatory or judicial review of the action of the FRB in approving the Conversion Application or the Holding Company Application.
(e) At the Time of Delivery, the Representative shall have received a prospective changecertificate of the Chief Executive Officer of the Mid-Tier Company, the Company and the Bank and the Chief Financial Officer of the Mid-Tier Company, the Company and the Bank, dated as of Time of Delivery, to the effect that (i) they have reviewed the contents of the Registration Statement and the Prospectus; (ii) based on each of their knowledge, the Registration Statement and the Prospectus do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in or affecting light of the general affairscircumstances under which such statements were made, managementnot misleading; and (iii) based on each of their knowledge, the financial position, stockholders’ equity or statements and other financial information included in the Registration Statement and the Prospectus fairly present the financial condition and results of operations of the Mid-Tier Company and the SubsidiariesBank as of and for the dates and periods covered by the Registration Statement and the Prospectus.
(f) As of the date hereof, other than the Representative shall have received from BDO USA, LLP a letter dated such date, in form and substance satisfactory to the Representative, to the effect that: (i) they are independent public accountants with respect to the Company, the Mid-Tier Company, the MHC and the Bank within the meaning of the Code of Ethics of the AICPA, the Securities Act and the Securities Act Regulations and the FRB Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the Xxxxxxxx-Xxxxx Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement, including any post-effective amendment thereto, and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Representative and BDO USA, LLP set forth or contemplated in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and supporting schedules of the Mid-Tier Company included in the Pricing Registration Statement do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act, the Securities Act Regulations and the FRB Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data” or under “Recent Developments” in the Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited financial statements included in the Registration Statement, (C) at a specified date not more than five (5) business days prior to the date of this Agreement, there has been any increase in the consolidated long term or short term debt of the Mid-Tier Company or any decrease in consolidated total assets, the allowance for loan losses, total deposits or net worth of the Mid-Tier Company, in each case as compared with the amounts shown in the September 30, 2013 consolidated statements of financial condition included in the Registration Statement or, (D) during the period from September 30, 2013 to a specified date not more than five (5) business days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier Company, except in all instances for increases or decreases which the Registration Statement and the Prospectus disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information that are included in the Registration Statement and Prospectus and that are specified by the Representative, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Company, the Mid-Tier Company, the MHC and the Bank identified in such letter.
(g) The “lock-up” agreements, each substantially in the form of Exhibit B hereto, between the Representative and the persons set forth on Exhibit C hereto, relating to sales and certain other dispositions of shares of Common Stock, Mid-Tier Company Common Stock or certain other securities, shall be delivered to the Representative on or before the date hereof and shall be in full force and effect on the Time of Delivery.
(h) At Time of Delivery, the Representative shall have received from BDO USA, LLP a letter, dated as of Time of Delivery, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to Time of Delivery.
(i) At Time of Delivery, the Securities and the Exchange Shares shall have been approved for quotation on the Nasdaq Global Select Market upon notice of issuance.
(j) At Time of Delivery, the Representative shall have received a letter from the Appraiser, dated as of the Time of Delivery, confirming its appraisal.
(k) At Time of Delivery, counsel for the Representative shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities, including the Shares and the Exchange Shares, as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities, including the Shares and the Exchange Shares, as herein contemplated shall be satisfactory in form and substance to the Representative and counsel for the Representative.
(l) At any time prior to Time of Delivery, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives Representative, are so material and adverse as to make it impracticable to market the Shares or inadvisable to proceed with enforce contracts, including subscriptions or orders, for the public offering sale of the Securities, and (ii) trading generally on either the American Stock Exchange, the New York Stock Exchange or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Pricing Prospectus;
(k) On or after the Applicable Time, there Nasdaq Stock Market shall not have occurred any been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either of said Exchanges or by order of the following: (i) Commission or any other governmental authority, and a suspension or material limitation in trading in securities generally on the NYSE; (ii) a suspension or material limitation in trading in the Company’s securities on the NYSE; (iii) a general banking moratorium on commercial banking activities shall not have been declared by either Federal Federal, New Jersey or New York or Texas State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus;
(l) The Shares to be sold at such Time of Delivery shall have been duly admitted for trading and quotation on the NYSE;
(m) The Company shall have obtained and delivered to the Underwriters executed copies of a lock-up agreement from each of its directors and executive officers, the Selling Stockholders and each other stockholder identified on Schedule IV hereto, in the form attached as Annex I hereto;
(n) The Company shall have complied with the provisions of Section 5(c) hereof with respect to the furnishing of prospectuses on the New York Business Day next succeeding the date of this Agreement; and
(o) The Company and the Selling Stockholders shall have furnished or caused to be furnished to you at such Time of Delivery certificates of officers of the Company and of the Selling Stockholders, respectively, satisfactory to you as to the accuracy of the representations and warranties of the Company and the Selling Stockholders, respectively, herein at and as of such Time of Delivery, as to the performance by the Company and the Selling Stockholders of all of their respective obligations hereunder to be performed at or prior to such Time of Delivery, and the Company shall have furnished or caused to be furnished certificates as to the matters set forth in subsections (a) of this Section and as to such other matters as you may reasonably requestauthorities.
(p) The Company shall have furnished or caused to be furnished to you at such Time of Delivery a certificate of the Executive Vice President, Chief Financial Officer and Treasurer to the effect that:
(i) He is familiar with the internal accounting records of the Company.
(ii) He has reviewed the “Recent Developments” section contained in both the Preliminary Prospectus and the Prospectus. The information presented in such Recent Developments section (A) has been prepared in good faith and based upon assumptions that he believes are reasonable and consistent with the operations of the Company and (B) is a fair estimate in all material respects of the Company’s total revenues and net income for the three months ended June 30, 2011 and has been derived from the Company’s accounting and/or financial records.
Appears in 1 contract
Conditions of Underwriters’ Obligations. The obligations obligation of the Underwriters hereunder, as Underwriter to purchase Shares pursuant to this Agreement is subject to the Shares to be delivered at each Time accuracy of Delivery, shall be subject, in their discretion, to the condition that all representations and warranties and other statements of the Company and the Operating Partnership herein contained, to the accuracy of the Selling Stockholders herein arestatements of the Company's officers, at on behalf of the Company as the sole member of GP Trust in its capacity as general partner of the Operating Partnership and as on behalf of such Time the Company and GP Trust, made in any certificate pursuant to the provisions hereof, to the performance by each of Delivery, true and correct, the condition that the Company and the Selling Stockholders shall have performed Operating Partnership of all of its covenants and their other obligations hereunder theretofore to be performedhereunder, and to the following additional further conditions:.
(a) The At the Execution Time or such other time as may be agreed between the parties hereto, the Company and the Operating Partnership shall have furnished to the Underwriter a letter substantially in the form of Exhibit A hereto from each of the executive officers and directors of the Company addressed to the Underwriter.
(b) On the Closing Date, (i) the Registration Statement shall have been filed by the Company and the Operating Partnership with the Commission not earlier than three years prior to the date hereof and became effective upon filing in accordance with Rule 462(e) of the 1933 Act Regulations and no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated or threatened by the Commission, and any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of counsel to the Underwriter, and no notice of objection of the Commission to the use of such form of registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) of the 1933 Act Regulations has been received by the Company or the Operating Partnership, (ii) each preliminary prospectus and the Prospectus shall have been filed with the Commission pursuant to in the manner and within the time period required by Rule 424(b) under the Act within the applicable time period prescribed for without reliance on Rule 424(b)(8) (or a post-effective amendment providing such filing by the rules information shall have been filed and regulations under the Act and become effective in accordance with Section 5(athe requirements of Rule 430B), and no order preventing or suspending the use of any preliminary prospectus or the Prospectus shall have been issued by the Commission or the securities authority of any jurisdiction, (iii) hereof; all any material required to be filed by the Company pursuant to Rule 433(d) under of the 1933 Act Regulations shall have been filed with the Commission within the applicable time period periods prescribed for such filings under such Rule 433, (iv) the Company shall have paid the required Commission filing fees relating to the Firm Shares within the time period required by Rule 433 under the Act; if the Company has elected to rely upon Rule 462(b456(b)(1)(i) under the Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m., Washington, D.C. time, on the date of this Agreement; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued 1933 Act Regulations without regard to the proviso therein and no proceeding for that purpose shall have been initiated or threatened by the Commission; no stop order suspending or preventing the use otherwise in accordance with Rules 456(b) and 457(r) of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction;
(b) Xxxxx Xxxxx L.L.P.1933 Act Regulations and, counsel for the Underwritersif applicable, shall have furnished to you such written opinion or opinions, dated such Time updated the “Calculation of Delivery, Registration Fee” table in form and substance reasonably satisfactory to you, accordance with respect to such matters as you may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;
(cRule 456(b)(1)(ii) Xxxxxx & Xxxxxx L.L.P., counsel for the Company, shall have furnished to you their written opinion, dated such Time of Delivery, either in form and substance satisfactory to you, to the effect set forth on Annex II.
(d) Xxxxxxxx X. Xxxxx, General Counsel and Corporate Secretary of the Company, shall have furnished to you his written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex III.
(e) Xxxx Xxxxxxxxxx & Xxxxxxxxx LLP, special Indiana counsel for the Company, shall have furnished to you their written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex IV.
(f) Xxxxxx LLP, counsel for each of the Selling Stockholders, as indicated in Schedule IIA hereto, shall have furnished to you their written opinion with respect to each of the Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex V.
(g) Such local counsel as you shall reasonably require shall have furnished to you their written opinion with respect to each of the foreign Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex VI.
(h) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement or on the cover page of a prospectus filed subsequent pursuant to Rule 424(b), (v) the rating assigned by any nationally recognized statistical rating organization to the date securities of the Company or the Operating Partnership as of the execution of this Agreement shall not have been lowered or withdrawn since such execution nor shall such rating organization have publicly announced or otherwise notified the Company since such execution that it has under surveillance or review, with possible negative implications, its rating of the securities of the Company or the Operating Partnership, and also (vi) there shall not have come to your attention any facts that would cause you to believe that the Disclosure Package or the Prospectus, at each Time the time it was, or was required to be, delivered or made available to purchasers of Deliverythe Shares, UHYincluded an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances existing at such time, not misleading.
(c) On the Closing Date, you shall have received the favorable opinion, dated as of the Closing Date, (i) of Xxxxxx & Xxxxxxx LLP, counsel for the Operating Partnership and the Company, in form and substance of Exhibit B hereto and reasonably satisfactory to counsel for the Underwriter and (ii) of Xxxxxx & Xxxxxxx LLP, counsel for the Operating Partnership and the Company with respect to certain tax matters, in form and substance of Exhibit D hereto and reasonably satisfactory to counsel for the Underwriter.
(d) On the Closing Date, you shall have received the favorable opinion, dated as of the Closing Date, of Vernon, Vernon, Wooten, Brown, Xxxxxxx & Xxxxxxx, P.A., counsel for the Company and the Operating Partnership, in form and substance reasonably of Exhibit C hereto and reasonably satisfactory to counsel for the Underwriter.
(e) On the Closing Date, you shall have received the favorable opinion, dated as of the Closing Date, of Xxxxxxxx Chance US LLP, counsel for the Underwriter, with respect to certain matters reasonably requested by the Underwriter.
(f) In addition to their opinions required by subsections (c), (d) and (e), respectively, of this Section, Xxxxxx & Xxxxxxx LLP, Vernon, Vernon, Wooten, Brown, Xxxxxxx & Xxxxxxx, P.A. and Xxxxxxxx Chance US LLP shall have furnished to you each additionally state (which may be in a letter separate from their opinion letter) to the effect that nothing has come to their attention that would lead them to believe that (i) each part of the Registration Statement (except for financial statements, supporting schedules and other financial data included or lettersincorporated by reference therein or omitted therefrom, dated as to which they need not express any belief), at the respective dates most recent time when such part became effective under the 1933 Act and the 1933 Act Regulations, or as of delivery thereofthe Execution Time, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the Prospectus or any amendment or supplement thereto (except for financial statements, supporting schedules and other financial data included or incorporated by reference therein or omitted therefrom, as to which they need not express any belief), at the time the Prospectus was issued, at the time any such amendment or supplement thereto was issued, or as of the Closing Date or any Option Closing Date, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and (iii) the Disclosure Package (except for financial statements, supporting schedules and other financial data included or incorporated by reference therein or omitted therefrom, as to which they need not express any belief), as of the Execution Time, included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions required by subsections (c), (d) and (e), respectively, of this Section, Xxxxxx & Xxxxxxx LLP, Vernon, Vernon, Wooten, Brown, Xxxxxxx & Xxxxxxx, P.A. and Xxxxxxxx Chance US LLP may rely, as to all matters of fact, upon certificates and written statements of officers and employees of and accountants for the Operating Partnership and the Company and upon certificates of appropriate government officials in such jurisdiction, and Xxxxxx & Xxxxxxx LLP and Xxxxxxxx Chance US LLP may additionally rely, as to matters involving the laws of the State of North Carolina, upon the opinion of Vernon, Vernon, Wooten, Brown, Xxxxxxx & Xxxxxxx, P.A. (or other counsel reasonably satisfactory to counsel for the Underwriter) in form and substance satisfactory to you;counsel for the Underwriter.
(ig) On the date of the Prospectus at a time prior to the execution of this AgreementClosing Date, at 9:30 a.m.there shall not have been, New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, Flackman Xxxxxxx & Xxxxxx, P.A. shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) Neither the Company nor the Subsidiaries shall have sustained since the date of the latest audited financial statements included in the Pricing Prospectus any loss Execution Time or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, other than as set forth or contemplated in the Pricing Prospectus and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall Disclosure Package or the Prospectus, any Material Adverse Change, whether or not have been any change arising in the capital stock or long-term debt ordinary course of business; no proceedings shall be pending or, to the knowledge of the Company or the Subsidiaries or any change, or any development involving a prospective change, in or affecting Operating Partnership threatened against the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and the Subsidiaries, other than as set forth or contemplated in the Pricing ProspectusCompany, the effect Operating Partnership, any of which, in any such case described in clause (i) their subsidiaries or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Pricing Prospectus;
(k) On or after the Applicable Time, there shall not have occurred any of the following: (i) a suspension Centers before or material limitation in trading in securities generally on by any Federal, state or other commission, board or administrative agency wherein an unfavorable decision, ruling or finding would be reasonably expected and which would materially and adversely affect the NYSE; (ii) a suspension business, property, financial condition or material limitation in trading in income of the Company’s securities on , the NYSEOperating Partnership and their subsidiaries, considered as one enterprise; (iii) and you shall have received a general moratorium on commercial banking activities declared by either Federal certificate of the President or New York or Texas State authorities Chief Executive Officer or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus;
(l) The Shares to be sold at such Time of Delivery shall have been duly admitted for trading and quotation on the NYSE;
(m) The Company shall have obtained and delivered to the Underwriters executed copies of a lock-up agreement from each of its directors and executive officers, the Selling Stockholders and each other stockholder identified on Schedule IV hereto, in the form attached as Annex I hereto;
(n) The Company shall have complied with the provisions of Section 5(c) hereof with respect to the furnishing of prospectuses on the New York Business Day next succeeding the date of this Agreement; and
(o) The Company and the Selling Stockholders shall have furnished or caused to be furnished to you at such Time of Delivery certificates of officers Vice President of the Company and of the Selling Stockholderschief financial or chief accounting officer of the Company in such capacity, respectivelyand of the general partner of the Operating Partnership, dated as of the Closing Date, to the effect that (i) there has been no such Material Adverse Change or proceedings and (ii) the representations and warranties in Section 1 are true and correct as of the Closing Date.
(h) At the Execution Time, you shall have received a letter dated such date from PricewaterhouseCoopers LLP with respect to both the Disclosure Package and the Prospectus, in form and substance satisfactory to you and PricewaterhouseCoopers LLP.
(i) On the Closing Date, you shall have received (1) a letter, dated as of the Closing Date, from PricewaterhouseCoopers LLP with respect to the accuracy Prospectus, to the effect that they reaffirm the statements made in the letters furnished pursuant to subsection (h) of this Section, except that the “specified date” referred to shall be a date not more than three business days prior to the Closing Date.
(j) If applicable, at the Execution Time, you shall have received a letter dated such date from such independent accountants that have prepared any historical financial statements included in or incorporated by reference into the Registration Statement, the Disclosure Package and the Prospectus which financial statements relate to properties or assets acquired or to be acquired by the Operating Partnership or the Company, or any of their Subsidiaries, in form and substance satisfactory to the Underwriter, to the effect that (i) they are independent accountants with respect to the Operating Partnership or the Company, as the case may be, and such properties or assets acquired by the Operating Partnership or the Company, as the case may be, within the meaning of the AICPA; and (ii) it is their opinion that the historical financial statements for such properties or assets that have been audited by them and covered by their opinions included or incorporated by reference into the Registration Statement, the Disclosure Package and the Prospectus comply in form in all material respects with the applicable accounting requirements of the 1933 Act and the 1933 Act Regulations or Rule 3-14 of Regulation S-X, as applicable.
(k) The Company shall have completed all required filings with the NYSE and other necessary actions in order to cause the Shares to be listed and admitted and authorized for trading on the NYSE, subject to notice of issuance.
(l) In the event that the Underwriter exercises its option provided in this Agreement as set forth in Section 2(b) hereof to purchase all or any portion of the Option Shares, the representations and warranties of the Company and the Selling Stockholders, respectively, Operating Partnership contained herein at and as of such Time of Delivery, as to the performance statements in any certificates furnished by the Company and the Selling Stockholders Operating Partnership hereunder shall be true and correct as of all the Option Closing Date and, at the Option Closing Date, you shall have received:
(1) A certificate, dated the Option Closing Date, of their respective obligations hereunder the President and Chief Executive Officer or a Vice President of the Company and of the chief financial or chief accounting officer of the Company on behalf of the Company and on behalf of the Company in its capacity as general partner of the Operating Partnership confirming that the certificate delivered at the Closing Date pursuant to Section 5(g) hereof remains true and correct as of the Option Closing Date.
(2) The favorable opinions of Xxxxxx & Xxxxxxx LLP, counsel for the Operating Partnership and the Company, in form and substance satisfactory to counsel for the Underwriter, dated the Option Closing Date, relating to, among other things, the Option Shares to be performed purchased on the Option Closing Date and otherwise to the same effect as the opinions or separate letter, as applicable, required by Sections 5(c) and 5(f) hereof.
(3) The favorable opinion of Vernon, Vernon, Wooten, Brown, Xxxxxxx & Xxxxxxx, P.A., counsel for the Company and the Operating Partnership in form and substance reasonably satisfactory to counsel for the Underwriter, dated the Option Closing Date, relating to the Option Shares and otherwise to the same effect as the opinion or separate letter, as applicable, required by Sections 5(d) and 5(f) hereof.
(4) The favorable opinion of Xxxxxxxx Chance US LLP, counsel for the Underwriter, dated the Option Closing Date, relating to the Option Shares and otherwise to the same effect as the opinion or separate letter, as applicable, required by Sections 5(e) and 5(f) hereof.
(m) A letter from PricewaterhouseCoopers LLP with respect to the Prospectus, in form and substance satisfactory to you and PricewaterhouseCoopers LLP and dated the Option Closing Date, substantially the same in form and substance as the letters furnished to you pursuant to Section 5(i) hereof, except that the “specified date” in the letters furnished pursuant to this Section 5(m) shall be a date not more than three days prior to the Option Closing Date.
(n) On the Closing Date and any Option Closing Date are purchased, counsel for the Underwriter shall have been furnished with such certificates, documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the issuance and sale of the Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company and the Operating Partnership in connection with the issuance and sale of the Shares, as herein contemplated, shall be satisfactory in form and substance to you and counsel for the Underwriter.
(o) On or before the Closing Date, you shall have received an ownership waiver letter from the board of directors of the Company granting permission to actually or beneficially own up to 9.8% of the Company's issued and outstanding Common Equity Shares (as defined in the Company's Articles of Incorporation). If any condition specified in this Section shall not have been fulfilled when and as required to be fulfilled, this Agreement may be terminated by you by notice to the Company or the Operating Partnership at any time at or prior to such Time of Deliverythe Closing Date or the Option Closing Date, as the case may be, and the Company such termination shall have furnished or caused be without liability of any party to be furnished certificates any other party except as to the matters set forth provided in subsections (a) of this Section and as to such other matters as you may reasonably request4 hereof.
(p) The Company shall have furnished or caused to be furnished to you at such Time of Delivery a certificate of the Executive Vice President, Chief Financial Officer and Treasurer to the effect that:
(i) He is familiar with the internal accounting records of the Company.
(ii) He has reviewed the “Recent Developments” section contained in both the Preliminary Prospectus and the Prospectus. The information presented in such Recent Developments section (A) has been prepared in good faith and based upon assumptions that he believes are reasonable and consistent with the operations of the Company and (B) is a fair estimate in all material respects of the Company’s total revenues and net income for the three months ended June 30, 2011 and has been derived from the Company’s accounting and/or financial records.
Appears in 1 contract
Sources: Underwriting Agreement (Tanger Properties LTD Partnership /Nc/)
Conditions of Underwriters’ Obligations. The several obligations of the Underwriters hereunder, as of any Purchased Securities under the Terms Agreement to the Shares to be delivered at each Time of Delivery, purchase such Purchased Securities shall be subject, in their discretionthe discretion of the Representatives, to the condition that all representations and warranties and other statements of the Company and of the Selling Stockholders herein are, at and as of such Time of Delivery, true and correct, the condition that the Company and the Selling Stockholders shall have performed all of its and their obligations hereunder theretofore to be performed, and the following additional conditions:
(a) The Prospectus in relation to the applicable Purchased Securities shall have been filed with the Commission pursuant to Rule 424(b) under of the 1933 Act within the applicable time period prescribed for such filing by the rules and regulations under the 1933 Act and in accordance with Section 5(a) hereof; all material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433 under the Act; if the Company has elected to rely upon Rule 462(b) under the Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m., Washington, D.C. time, on the date of this Agreement; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your the Representatives' reasonable satisfaction;.
(b) Xxxxx Xxxxx L.L.P., counsel for the Underwriters, shall have furnished to you such written opinion or opinions, dated such Time of Delivery, in form and substance reasonably satisfactory to you, with respect to such matters as you may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;
(c) Xxxxxx & Xxxxxx L.L.P., counsel for the Company, shall have furnished to you their written opinion, dated such Time of Delivery, in form and substance satisfactory to you, Subsequent to the effect set forth on Annex II.
(d) Xxxxxxxx X. Xxxxx, General Counsel and Corporate Secretary of the Company, shall have furnished to you his written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex III.
(e) Xxxx Xxxxxxxxxx & Xxxxxxxxx LLP, special Indiana counsel for the Company, shall have furnished to you their written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex IV.
(f) Xxxxxx LLP, counsel for each of the Selling Stockholders, as indicated in Schedule IIA hereto, shall have furnished to you their written opinion with respect to each of the Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex V.
(g) Such local counsel as you shall reasonably require shall have furnished to you their written opinion with respect to each of the foreign Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex VI.
(h) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, UHY, LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) On the date of the Prospectus at a time prior to the execution of this AgreementClosing Date, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, Flackman Xxxxxxx & Xxxxxx, P.A. shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) Neither the Company nor the Subsidiaries shall have sustained since the date of the latest audited financial statements included in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, other than as set forth or contemplated in the Pricing Prospectus and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or the Subsidiaries or occurred (i) any change, or any development involving a prospective change, that would have a Material Adverse Effect, not contemplated by the Prospectus, which in the opinion of the Representatives, would materially, adversely affect the market for the Securities, or affecting (ii) any event or development relating to or involving the general affairs, management, financial position, stockholders’ equity Company or results of operations any officer or director of the Company and the Subsidiaries, other than as set forth or contemplated referred to in the Pricing Prospectus, the effect of paragraph 5(b)(iii) hereof which, in any such case described in clause (i) or (ii), is in the judgment opinion of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering Company or the delivery Underwriters and their counsel requires the making of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Pricing Prospectus;
(k) On additions to or after the Applicable Time, there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the NYSE; (ii) a suspension or material limitation in trading in the Company’s securities on the NYSE; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Texas State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated changes in the Prospectus;
(l) The Shares , if amending or supplementing the Prospectus to be sold at reflect such Time of Delivery shall have been duly admitted for trading and quotation on the NYSE;
(m) The Company shall have obtained and delivered to the Underwriters executed copies of a lock-up agreement from each of its directors and executive officers, the Selling Stockholders and each other stockholder identified on Schedule IV heretoevent or development would, in the form attached as Annex I hereto;opinion of the Representatives, materially adversely affect the market for the Securities.
(nc) The Company shall have complied with Robexxxxx Xxxoxxxxx, Xxnadian counsel for the provisions of Section 5(c) hereof with respect to the furnishing of prospectuses on the New York Business Day next succeeding the date of this Agreement; and
(o) The Company and the Selling Stockholders Company, shall have furnished or caused to be furnished to you at such Time of Delivery certificates of officers of the Company and of the Selling Stockholders, respectively, satisfactory to you as to the accuracy of Representatives their written opinion, dated the representations Closing Date for the applicable Purchased Securities and warranties of the Company and the Selling Stockholders, respectively, herein at and as of such Time of Delivery, as addressed to the performance by the Company Representatives and the Selling Stockholders of all of their respective obligations hereunder to be performed at or prior to such Time of DeliverySkadden, and the Company shall have furnished or caused to be furnished certificates as Arps, Slate, Meagxxx & Xlom (Xxternational), United States counsel to the matters set forth in subsections (a) of this Section and as to such other matters as you may reasonably request.
(p) The Company shall have furnished or caused to be furnished to you at such Time of Delivery a certificate of the Executive Vice PresidentUnderwriters, Chief Financial Officer and Treasurer to the effect that:
(i) He The Company is familiar with a corporation incorporated and existing under the internal accounting records laws of the Company.Province of Saskatchewan with full corporate power and authority to own, lease and operate its properties and assets and to conduct its business as described in the Registration Statement and the Prospectus, and is registered to carry on business under the laws of Saskatchewan and New Brunswick, being the only Canadian jurisdictions where the Company carries on any material portion of its business;
(ii) He has reviewed Each of the “Recent Developments” section contained Canadian Subsidiaries (as defined in both such opinion) is a corporation duly incorporated and existing under the Preliminary Prospectus laws of the Province of Saskatchewan, with full corporate power and authority to own, lease, and operate its properties and assets and to conduct its business as described in the Registration Statement and the Prospectus. ; and all the outstanding shares of capital stock of each of the such Subsidiaries have been duly authorized and validly issued, and are fully paid and nonassessable;
(iii) The information presented in Company has the corporate power and authority to enter into this Agreement and the Terms Agreement with respect to the Purchased Securities and to issue, sell and deliver the Purchased Securities to the Underwriters as provided herein and therein, and this Agreement and such Recent Developments section Terms Agreement have been duly authorized and, to the extent that execution and delivery are matters governed by the laws of the Province of Saskatchewan, have been duly executed and delivered by the Company;
(iv) The Indenture has been duly authorized and, to the extent that execution and delivery are matters governed by the laws of the Province of Saskatchewan, have been duly executed and delivered by the Company;
(v) The Purchased Securities have been duly authorized and, to the extent that execution and delivery are matters governed by the laws of the Province of Saskatchewan, have been duly executed and delivered by the Company;
(vi) To the knowledge of such counsel, the Company is not (A) has been prepared in good faith violation of its articles of incorporation or in material violation of its bylaws or (B) in default in the performance of any material obligation, agreement or condition contained in any bond, debenture, note or other evidence of indebtedness, except as may be disclosed in the Prospectus or where any such default or defaults, in the aggregate, would not have a Material Adverse Effect;
(vii) Neither the issuance, sale or delivery of the Purchased Securities, nor the execution, delivery or performance of the Indenture, this Agreement or the Terms Agreement with respect to any Purchased Securities, or compliance by the Company with all provisions of the Indenture, the Purchased Securities, this Agreement and based upon assumptions that he believes are reasonable such Terms Agreement, nor consummation by the Company of the transactions contemplated by the Indenture, the Purchased Securities, this Agreement and consistent such Terms Agreement conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, the operations articles or bylaws of the Company and (B) or any material agreement, indenture, lease or other instrument to which the Company is a fair estimate in all material respects party or by which it or any of its properties is bound that is known to such counsel, which conflict, breach or default would have a Material Adverse Effect on the Company’s total revenues Company and net income for the three months ended June 30its subsidiaries, 2011 and has been derived from the Company’s accounting and/or financial records.taken as a whole, or
Appears in 1 contract
Sources: Underwriting Agreement (Potash Corporation of Saskatchewan Inc)
Conditions of Underwriters’ Obligations. The obligations of the Underwriters hereunderto purchase and pay for the Firm Shares and the Additional Shares, as to the Shares to be delivered at each Time of Deliveryprovided herein, shall be subjectsubject to the accuracy of the representations and warranties of the Company herein contained, in their discretionas of the date hereof and as of the Closing Date (for purposes of this Section 6, "Closing Date" shall refer to the Closing Date for the Firm Shares and any Additional Closing Date, if different, for the Additional Shares), to the condition that all representations and warranties and other absence from any certificates, opinions, written statements or letters furnished to you or to Proskauer Rose LLP ("Underwriters' Counsel"), pursuant to this Section 6 of any misstatement or omission, to the performance by the Company and of the Selling Stockholders herein are, at and as of such Time of Delivery, true and correct, the condition that the Company and the Selling Stockholders shall have performed all of its and their obligations hereunder theretofore and to be performed, and the following additional conditions:
(a) The Registration Statement shall have become effective not later than, if pricing pursuant to Rule 430A, 5:30 P.M., New York time, on the date of this Agreement or, if pricing pursuant to a pricing amendment, 12:00 P.M., New York time on the date an amendment to the Registration Statement containing the public offering price has been filed with the Commission, or at such later time and date as shall have been consented to in writing by the Representatives; if the Company shall have elected to rely upon Rule 430A or Rule 434 of the Regulations, the Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in a timely fashion in accordance with Section 5(a4(a) hereof; all material required and, at or prior to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433 under the Act; if the Company has elected to rely upon Rule 462(b) under the ActClosing Date, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m., Washington, D.C. time, on the date of this Agreement; no stop order suspending the effectiveness of the Registration Statement or any part post-effective amendment thereof shall have been issued and no proceeding for that purpose proceedings therefor shall have been initiated or threatened by the Commission; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction;.
(b) Xxxxx Xxxxx L.L.P.At the Closing Date, counsel for the Underwriters, shall have furnished to you such written opinion or opinions, dated such Time of Delivery, in form and substance reasonably satisfactory to you, with respect to such matters as you may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;
(c) Xxxxxx the opinion of Xxxx Xxxxx Xxxx & Xxxxxx L.L.P.XxXxxx LLP, counsel for the Company, shall have furnished dated the Closing Date addressed to you their written opinion, dated such Time of Delivery, the Underwriters and in form and substance satisfactory to youUnderwriters' Counsel, to the effect set forth on Annex II.
(d) Xxxxxxxx X. Xxxxx, General Counsel and Corporate Secretary of the Company, shall have furnished to you his written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex III.
(e) Xxxx Xxxxxxxxxx & Xxxxxxxxx LLP, special Indiana counsel for the Company, shall have furnished to you their written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex IV.
(f) Xxxxxx LLP, counsel for each of the Selling Stockholders, as indicated in Schedule IIA hereto, shall have furnished to you their written opinion with respect to each of the Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex V.
(g) Such local counsel as you shall reasonably require shall have furnished to you their written opinion with respect to each of the foreign Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex VI.
(h) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, UHY, LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, Flackman Xxxxxxx & Xxxxxx, P.A. shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) Neither the Company nor the Subsidiaries shall have sustained since the date of the latest audited financial statements included in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, other than as set forth or contemplated in the Pricing Prospectus and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or the Subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and the Subsidiaries, other than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Pricing Prospectus;
(k) On or after the Applicable Time, there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the NYSE; (ii) a suspension or material limitation in trading in the Company’s securities on the NYSE; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Texas State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus;
(l) The Shares to be sold at such Time of Delivery shall have been duly admitted for trading and quotation on the NYSE;
(m) The Company shall have obtained and delivered to the Underwriters executed copies of a lock-up agreement from each of its directors and executive officers, the Selling Stockholders and each other stockholder identified on Schedule IV hereto, in the form attached as Annex I hereto;
(n) The Company shall have complied with the provisions of Section 5(c) hereof with respect to the furnishing of prospectuses on the New York Business Day next succeeding the date of this Agreement; and
(o) The Company and the Selling Stockholders shall have furnished or caused to be furnished to you at such Time of Delivery certificates of officers of the Company and of the Selling Stockholders, respectively, satisfactory to you as to the accuracy of the representations and warranties of the Company and the Selling Stockholders, respectively, herein at and as of such Time of Delivery, as to the performance by the Company and the Selling Stockholders of all of their respective obligations hereunder to be performed at or prior to such Time of Delivery, and the Company shall have furnished or caused to be furnished certificates as to the matters set forth in subsections (a) of this Section and as to such other matters as you may reasonably request.
(p) The Company shall have furnished or caused to be furnished to you at such Time of Delivery a certificate of the Executive Vice President, Chief Financial Officer and Treasurer to the effect that:
(i) He Each of the Company and its subsidiaries has been duly organized and is familiar validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation. Each of the Company and its subsidiaries is duly qualified and in good standing as a foreign corporation in each jurisdiction in which the character or location of its properties (owned, leased or licensed) or the nature or conduct of its business makes such qualification necessary, except for those failures to be so qualified or in good standing which will not, individually or in the aggregate, have a Material Adverse Effect. Each of the Company and its subsidiaries has all requisite power and authority, and all necessary consents, approvals, authorizations, orders, registrations, qualifications, licenses and permits of and from all public, regulatory or governmental agencies and bodies, to own, lease and operate its respective properties and conduct its business as now being conducted and as described in the Registration Statement and the Prospectus. All of the issued and outstanding capital stock of each subsidiary of the Company has been duly and validly authorized and issued and is fully paid and nonassessable and was not issued in violation of any preemptive or similar rights and, is owned directly or indirectly by the Company, free and clear of any lien, encumbrance, claim, security interest, restriction on transfer, stockholders' agreement, voting trust or other defect of title whatsoever.
(ii) The Company has authorized and outstanding capital stock as set forth in the Registration Statement and the Prospectus. All of the outstanding shares of Common Stock are duly and validly authorized and issued, are fully paid and nonassessable and were not issued in violation of or subject to any preemptive or similar rights. The Shares to be delivered on the Closing Date have been duly and validly authorized and, when delivered by the Company in accordance with this Agreement, will be duly and validly issued, fully paid and nonassessable and will not have been issued in violation of or subject to any preemptive or similar rights. The Common Stock, the internal accounting records of Firm Shares and the Additional Shares conform to the descriptions thereof contained in the Registration Statement and the Prospectus.
(iii) The Common Stock is duly authorized for quotation on the Nasdaq National Market System.
(iv) This Agreement has been duly and validly authorized, executed and delivered by the Company.
(iiv) He has reviewed To the “Recent Developments” section contained knowledge of such counsel, there is no litigation or governmental or other action, suit, proceeding or investigation before any court or before or by any public, regulatory or governmental agency or body pending or threatened against, or involving the properties or business of, the Company or any of its subsidiaries, which is of a character required to be disclosed in both the Preliminary Prospectus Registration Statement and the Prospectus. Prospectus which has not been properly disclosed therein and there are no statutes, regulations, contracts or other documents that are required to be described in the Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement that are not described or filed as required.
(vi) The information presented in such Recent Developments section execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby by the Company do not and will not (A) has been prepared conflict with or result in good faith a breach of any of the terms and based provisions of, or constitute a default (or an event which with notice or lapse of time, or both, would constitute a default) under, or result in the creation or imposition of any lien, charge or encumbrance upon assumptions that he believes are reasonable and consistent with the operations any property or assets of the Company or any of its subsidiaries pursuant to, any agreement, instrument, franchise, license or permit known to such counsel to which the Company or any of its subsidiaries is a party or by which any of such corporations or their respective properties or assets may be bound or (B) violate or conflict with any provision of applicable law or the certificate of incorporation or by-laws (or other organizational documents) of the Company or any of its subsidiaries, or, to the best knowledge of such counsel, any judgment, decree, order, statute, rule or regulation of any court or any public, governmental or regulatory agency or body having jurisdiction over the Company or any of its subsidiaries or any of their respective properties or assets. No consent, approval, authorization, order, registration, filing, qualification, license or permit of or with any court or any public, governmental or regulatory agency or body having jurisdiction over the Company or any of its subsidiaries or any of their respective properties or assets is required for the execution, delivery and performance of this Agreement or the consummation of the transactions contemplated hereby, except for (1) such as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Shares by the Underwriters (as to which such counsel need express no opinion) and (2) such as have been made or obtained under the Act.
(vii) The statements (A) in the Prospectus under the captions "Risk Factors--We face extensive government regulation and legal uncertainties," "Business--Government Regulation and Legal Uncertainties,""--Legal Proceedings," "Management--Executive Officers and Directors," "--Employment Agreements," "--Stock Option Plans," "Description of Capital Stock," "Shares Eligible for Future Sale" and "Underwriting" and (B) is a fair estimate in all material respects the Registration Statement in Items 14 and 15, in each case insofar as such statements constitute summaries of the Company’s total revenues legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and net income for proceedings and fairly summarize the three months ended June 30, 2011 and has been derived from the Company’s accounting and/or financial recordsmatters referred to therein.
Appears in 1 contract
Conditions of Underwriters’ Obligations. The several obligations of the Underwriters hereunder, as to purchase the Shares hereunder are subject to the Shares to be delivered at each Time accuracy of Deliveryand compliance with the representations, shall be subject, in their discretion, to the condition that all representations and warranties and other statements agreements of and by each of the Company Fund, the Adviser and of the Selling Stockholders Sub-Adviser contained herein are, at on and as of such Time of Delivery, true and correctthe date on which the Registration Statement becomes or became effective, the condition that date of the Company Prospectus (and of any amendment or supplement thereto) and the Selling Stockholders shall have performed Closing Date; to the accuracy and completeness of all statements made by the Fund, the Adviser, the Sub-Adviser or any of its and their obligations hereunder theretofore respective officers in any certificate delivered to be performedthe Representatives or their counsel pursuant to this Agreement, and to the following additional conditions:
(a) The Prospectus shall have been filed with If, at the Commission pursuant to Rule 424(b) under time this Agreement is executed and delivered, it is necessary for the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(a) hereof; all material required Registration Statement or a post-effective amendment thereto to be filed by declared effective before the Company pursuant to Rule 433(d) under offering of the Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433 under the Act; if the Company has elected to rely upon Rule 462(b) under the ActShares may commence, the Rule 462(b) Registration Statement or such post-effective amendment shall have become effective by 10:00 not later than 5:30 p.m., Washington, D.C. New York City time, on the date of this Agreementhereof or at such later date and time as shall be consented to in writing by you and all filings, if any, required by Rules 497 and 430A under the 1933 Act and the 1933 Act Rules and Regulations shall have been timely made; no stop order suspending the effectiveness of the Registration Statement or any part thereof order pursuant to Section 8(e) of the 1940 Act shall have been issued and no proceeding for that purpose shall have been initiated instituted or, to the knowledge of the Fund, the Adviser, the Sub-Adviser or any Underwriter, threatened by the Commission; no stop Commission and any request of the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to your satisfaction.
(b) That you shall have received on the Closing Date an opinion of Vedder, Price, Kaufman & Kammholz, P.C. special counsel for the Fund, dated the Xxxxxxg Date and addressed to you, as the Representatives of the several Underwriters, in substantially the form attached hereto as Exhibit A. In rendering its opinion, Vedder, Price, Kaufman & Kammholz, P.C. may rely, as to matters of Massachusettx xxx, upon the opinion of Bingham McCutchen LLP dated as of the date thereof.
(x) Xxat you xxxxx xxxe received on the Closing Date an opinion of the Adviser's internal counsel, dated the Closing Date and addressed to you, as Representatives of the several Underwriters, in substantially the form attached hereto as Exhibit B.
(d) That you shall have received on the Closing Date an opinion of Wolf, Block, Schorr and Solis-Cohen LLP, special counsel to the Sub-Adviser, xxxxx the Cxxxxxx Xxxx and addressed to you, as Representatives of the several Underwriters, in substantially the form attached hereto as Exhibit C.
(e) That you shall have received on the Closing Date an opinion of Skadden, Arps, Slate, Meagher & Flom LLP, dated the Closing Date and addressed to you, xx xxx 37 Representatives of the several underwriters, with respect to such matters as you may require and the Fund, the Adviser, the Sub-Adviser and their respective counsel shall have furnished to such counsel such documents as they may request for the purpose of enabling them to pass upon such matters.
(f) That you shall have received letters addressed to you, as the Representatives of the several Underwriters and dated each of the date hereof and the Closing Date from Ernst & Young LLP, independent registered public accounting firm, substantially in the forms heretofore approved by you.
(i) No order suspending the effectiveness of the Registration Statement or preventing prohibiting or suspending the use of the Prospectus (or any Issuer Free Writing amendment or supplement to any of the foregoing) or any Prepricing Prospectus shall have been initiated issued and no proceedings for such purpose or threatened for the purpose of commencing an enforcement action against the Fund, the Adviser or the Sub-Adviser, with respect to the transactions contemplated by the Commission; Prospectus (or any amendment or supplement thereto) and all requests this Agreement, may be pending before or, to the knowledge of the Fund, the Adviser, the Sub-Adviser or any Underwriter or in the reasonable view of counsel to the Underwriters, shall be threatened or contemplated by the Commission at or prior to the Closing Date and that any request for additional information on the part of the Commission shall have been (to be included in the Registration Statement, the Prospectus or otherwise) be complied with to your reasonable satisfaction;
(b) Xxxxx Xxxxx L.L.P., counsel for the Underwriters, shall have furnished to you such written opinion or opinions, dated such Time of Delivery, in form and substance reasonably satisfactory to you, with respect to such matters as you may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;
(c) Xxxxxx & Xxxxxx L.L.P., counsel for the Company, shall have furnished to you their written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex II.
(d) Xxxxxxxx X. Xxxxx, General Counsel and Corporate Secretary satisfaction of the CompanyRepresentatives, shall have furnished to you his written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex III.
(e) Xxxx Xxxxxxxxxx & Xxxxxxxxx LLP, special Indiana counsel for the Company, shall have furnished to you their written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex IV.
(f) Xxxxxx LLP, counsel for each of the Selling Stockholders, as indicated in Schedule IIA hereto, shall have furnished to you their written opinion with respect to each of the Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex V.
(g) Such local counsel as you shall reasonably require shall have furnished to you their written opinion with respect to each of the foreign Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex VI.
(h) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, UHY, LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, Flackman Xxxxxxx & Xxxxxx, P.A. shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) Neither the Company nor the Subsidiaries shall have sustained since the date of the latest audited financial statements included in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, other than as set forth or contemplated in the Pricing Prospectus and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term of the Fund nor any material increase in debt of the Company Fund (other than in the ordinary course of business) from that set forth in the Registration Statement or the Subsidiaries Prospectus (or any changeamendment or supplement to either of them) and the Fund shall not have sustained any material liabilities or obligations, direct or contingent, other than those reflected in or contemplated by the Registration Statement or the Prospectus (or any amendment or supplement to either of them), (iii) since the date of the Prospectus there shall not have been any material, adverse change in the condition (financial or other), business, prospects, properties, net assets or results of operations of the Fund, the Adviser or the Sub-Adviser, (iv) none of the Fund, the Adviser or the Sub-Adviser shall have sustained any material loss or interference with their businesses from any court or from legislative or other governmental action, order or decree or from any other occurrence not described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them), and (v) all of the representations and warranties of each of the Fund, the Adviser or the Sub-Adviser contained in this Agreement shall be true and correct on and as of the date hereof and as of the Closing Date as if made on and as of the Closing Date.
(h) Subsequent to the effective date of this Agreement, there shall not have occurred (i) any change or any development involving a prospective change, in or affecting the condition (financial or other), general affairs, managementbusiness, financial positionprospects, stockholders’ equity properties, net assets or results of operations of the Company and Fund, the SubsidiariesAdviser or the Sub-Adviser not contemplated by the Prospectus, other than which in your opinion, as set forth the Representatives of the several Underwriters, would materially, adversely affect the market for the Shares or contemplated (ii) any event or development relating to or involving the Fund, the Adviser, the Sub-Adviser or any officer, trustee, director, of the Fund, the Adviser or the Sub-Adviser, which makes any statement of a material fact made in the Pricing Prospectus, the effect of Prospectus untrue or which, in the opinion of the Fund and its counsel or the Underwriters and their counsel, requires the making of any addition to or change in the Prospectus in order to state a material fact required by the 1933 Act, the 1940 Act, the Rules and Regulations, the Advisers Act, the Advisers Act Rules and Regulations or any other law to be stated therein or necessary in order to make the statements therein (in the case of a prospectus, in the light of the circumstances under which they were made) not misleading, if amending or supplementing the Prospectus to reflect such case described event or development would, in clause your opinion, as the Representatives of the several Underwriters, materially, adversely affect the market for the Shares.
(i) or (ii), is in the judgment That none of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with Fund, the public offering Adviser or the delivery Sub-Adviser shall have failed at or prior to the Closing Date to have performed or complied with any of the agreements herein contained and required to be performed or complied with by them at or prior to the Closing Date.
(j) The Shares being shall have been accorded a rating of "Aaa" by Moody's Investor Services, Inc. and "AAA" by Fitch Ratings, and xxxxxxx and/or press releases to such effect, dated on or before the Closing Date, shall have been delivered at such Time of Delivery on to the terms and in the manner contemplated in the Pricing Prospectus;Representatives.
(k) On or after the Applicable Time, there shall not have occurred any As of the following: (i) a suspension or material limitation in trading in securities generally on the NYSE; (ii) a suspension or material limitation in trading in the Company’s securities on the NYSE; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Texas State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financialClosing Date, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment and assuming receipt of the Representatives makes it impracticable or inadvisable to proceed with net proceeds from the public offering or sale of Shares, the delivery of 1940 Act FundPreferred Shares Asset Coverage and the FundPreferred Shares being delivered at such Time of Delivery on the terms and in the manner contemplated Basic Maintenance Amount (each as defined in the Prospectus;) each will be met.
(l) The Shares to be sold at such Time of Delivery That you shall have been duly admitted for trading and quotation received on the NYSE;
(m) The Company shall have obtained and delivered to the Underwriters executed copies of Closing Date a lock-up agreement from each of its directors and executive officerscertificate, the Selling Stockholders and each other stockholder identified on Schedule IV heretodated such date, in the form attached as Annex I hereto;
(n) The Company shall have complied with the provisions of Section 5(c) hereof with respect to the furnishing of prospectuses on the New York Business Day next succeeding the date of this Agreement; and
(o) The Company and the Selling Stockholders shall have furnished or caused to be furnished to you at such Time of Delivery certificates of officers of the Company president, any managing director or any vice president and of the Selling Stockholderscontroller, respectivelytreasurer or assistant treasurer of each of the Fund, satisfactory the Adviser and the Sub-Adviser certifying that (i) the signers have carefully examined the Registration Statement, the Prospectus (and any amendments or supplements to you as to the accuracy either of them) and this Agreement, (ii) the representations and warranties of the Company Fund (with respect to the certificates from such Fund officers), the representations and warranties of the Adviser (with respect to the certificates from such officers of the Adviser) and the Selling Stockholders, respectively, herein at representations and warranties of the Sub-Adviser (with respect to the certificates from such officers of the Sub-Adviser) in this Agreement are true and correct on and as of the date of the certificate as if made on such Time date, (iii) since the date of Deliverythe Prospectus (and any amendment or supplement thereto) there has not been any material, adverse change in the condition (financial or other), business, prospects (other than as a result of a change in the financial markets generally), properties, net assets or results of operations of the Fund (with respect to the performance by certificates from such Fund officers), the Company and the Selling Stockholders of all of their respective obligations hereunder to be performed at or prior to such Time of Delivery, and the Company shall have furnished or caused to be furnished certificates as Adviser (with respect to the matters set forth in subsections (a) of this Section and as to certificates from such other matters as you may reasonably request.
(p) The Company shall have furnished or caused to be furnished to you at such Time of Delivery a certificate officers of the Executive Vice President, Chief Financial Officer and Treasurer Adviser) or the Sub-Adviser (with respect to the effect that:
(i) He is familiar with the internal accounting records certificates from such officers of the Company.
Sub-Adviser), (iiiv) He has reviewed to the “Recent Developments” section contained in both knowledge of such officers after reasonable investigation, no order suspending the Preliminary Prospectus and effectiveness of the Prospectus. The information presented in Registration Statement or prohibiting the sale of any of the Shares or having a material, adverse effect on the Fund (with respect to the certificates from such Recent Developments section Fund officers), or the Adviser (Awith respect to the certificates from such officers of the Adviser) or the Sub-Adviser (with respect to the certificates from such officers of the Sub-Adviser) has been prepared in good faith issued and based upon assumptions that he believes no proceedings for any such purpose are reasonable and consistent with pending before or threatened by the operations Commission or any court or other regulatory body, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court or any other governmental, regulatory, self-regulatory or administrative agency or any official, (v) each of the Company Fund (with respect to certificates from such Fund officers), the Adviser (with respect to certificates from such officers of the Adviser) and the Sub-Adviser (Bwith respect to certificates from such officers of the Sub-Adviser) is a fair estimate has performed and complied in all material respects with all agreements that this Agreement require it to perform by such Closing Date, (vi) none of the Company’s total revenues Fund (with respect to the certificate from such officers of the Fund) or the Adviser (with respect to the certificate from such officers of the Adviser) or the Sub-Adviser (with respect to the certificate from such officers of the Sub-Adviser) has sustained any material loss or interference with its business from any court or from legislative or other governmental action, order or decree or from any other occurrence not described in the Registration Statement or the Prospectus and net income for any amendment or supplement to either of them and (vii) with respect to the three months ended June 30certificate from such officers of the Fund, 2011 there has not been any change in the capital stock of the Fund nor any material increase in the debt of the Fund from that set forth in the Prospectus (or any amendment or supplement thereto) and the Fund has been derived from not sustained any material liabilities or obligations, direct or contingent, other than those reflected in the Company’s accounting and/or financial recordsProspectus (or any amendment or supplement thereto).
(m) That the Fund, the Adviser and the Sub-Adviser shall have furnished to you such further letters, certificates, documents and opinions of counsel as you shall reasonably request (including certificates of officers of the Fund, the Adviser and the Sub-Adviser). All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are satisfactory in form and substance to you and your counsel acting in good faith. Any certificate or document signed by any officer of the Fund, the Adviser or the Sub-Adviser and delivered to you, as the Representatives of the Underwriters or to Underwriters' counsel, shall be deemed a representation and warranty by the Fund, the Adviser or the Sub-Adviser to each Underwriter as to the statements made therein.
Appears in 1 contract
Sources: Underwriting Agreement (Nuveen Tax-Advantaged Floating Rate Fund)
Conditions of Underwriters’ Obligations. The obligations of the Underwriters hereunder, as to the Shares to be delivered at each Time of Delivery, shall be subject, in their discretion, to the condition (which condition may be waived by the Underwriters) that all representations and warranties and other statements of the Company and of the Selling Stockholders herein are, at and as of such Time of Delivery, true and correct, the condition that the statements of the Company and its officers made in any certificate delivered pursuant to this Agreement shall be, at and as of such Time of Delivery, true and correct, the Selling Stockholders condition that the Company shall have performed all of its and their obligations hereunder theretofore to be performed, and the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(a) hereof; no stop order suspending the effectiveness of the Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; all material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433 under the Act; if the Company has elected to rely upon Rule 462(b) under the Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m., Washington, D.C. time, on the date of this Agreement; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your the Representatives’ reasonable satisfaction;
(b) Xxxxx Xxxxx L.L.P.DLA Piper LLP (US), counsel for to the Underwriters, shall have furnished to you the Underwriters such written opinion or opinions, dated such Time of Delivery, with respect to this Agreement, the Registration Statement, the Pricing Disclosure Package, the Prospectus and other related matters as the Underwriters may reasonably request;
(c) Fenwick & West LLP, counsel to the Company, shall have furnished to the Underwriters their written opinion and letter, each dated such Time of Delivery, in form and substance reasonably satisfactory to you, with respect to such matters as you may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such mattersthe Underwriters;
(c) Xxxxxx & Xxxxxx L.L.P., counsel for the Company, shall have furnished to you their written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex II.
(d) Xxxxxxxx X. Xxxxx, General Counsel and Corporate Secretary of the Company, shall have furnished to you his written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex III.
(e) Xxxx Xxxxxxxxxx & Xxxxxxxxx LLP, special Indiana counsel for the Company, shall have furnished to you their written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex IV.
(f) Xxxxxx LLP, counsel for each of the Selling Stockholders, as indicated in Schedule IIA hereto, shall have furnished to you their written opinion with respect to each of the Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex V.
(g) Such local counsel as you shall reasonably require shall have furnished to you their written opinion with respect to each of the foreign Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex VI.
(h) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement hereof and also at each Time of Delivery, UHYPricewaterhouseCoopers LLP, LLP shall have furnished to you the Underwriters a letter or letters, each dated the respective dates date of delivery thereof, in form and substance reasonably satisfactory to you;
(i) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, Flackman Xxxxxxx & Xxxxxx, P.A. shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to youUnderwriters;
(i) Neither the Company nor the Subsidiaries any of its subsidiaries shall have sustained since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, other otherwise than as set forth or contemplated in the Pricing Prospectus Prospectus, and (ii) since the respective dates as of which information is given in the Pricing Prospectus Prospectus, there shall not have been any change in the capital stock (other than the issuance of shares of Common Stock upon exercise of stock options or warrants, the issuance of stock options or restricted stock units under the Company’s existing equity incentive plans or the conversion of notes, pursuant to contractual obligations described in the Registration Statement and the Pricing Prospectus) or long-term debt of the Company or the Subsidiaries or occurrence of any changeMaterial Adverse Effect, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and the Subsidiaries, other otherwise than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the sole judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Pricing Prospectus;
(kf) On or after the Applicable Time, date hereof there shall not have occurred any of the following: (i) additional material governmental restrictions, not in force and effect on the date hereof, shall have been imposed upon trading in securities generally or minimum or maximum prices shall have been generally established on the New York Stock Exchange, The NASDAQ Global Market, the NYSE Amex or in the over-the-counter market by FINRA, or trading in securities generally shall have been suspended on the New York Stock Exchange, The NASDAQ Global Market, the NYSE Amex or in the over the counter market by FINRA, or a general banking moratorium shall have been established by federal or New York authorities, (ii) a suspension or material limitation in trading in securities generally on the NYSE; The NASDAQ Global Market, (iiiii) a suspension or material limitation in trading in the Company’s securities on the NYSE; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Texas State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; The NASDAQ Global Market, (iv) an outbreak of major hostilities or other national or international calamity or any substantial change in political, financial or economic conditions shall have occurred or shall have accelerated or escalated to such an extent, as, in the outbreak or escalation sole judgment of hostilities involving the United States or Representative, to affect materially and adversely the declaration by marketability of the United States of a national emergency or war Shares or (v) there shall be any action, suit or proceeding pending or threatened, or there shall have been any development or prospective development involving particularly the occurrence business or properties or securities of any other calamity or crisis the Company or any change in financialof its subsidiaries or the transactions contemplated by this Agreement, political or economic conditions which, in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the sole judgment of the Representatives Representative, has materially and adversely affected the Company’s business or earnings and makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus;
(lg) The Shares to be sold at such Time of Delivery shall have been duly admitted listed, subject to notice of issuance, on The NASDAQ Global Market;
(h) Each director and executive officer of the Company, in their capacities as such, shall have executed and delivered to the Underwriters a lock-up agreement in form and substance reasonably satisfactory to the Underwriters;
(i) The Underwriters shall have received on and as of each Time of Delivery, as the case may be, satisfactory evidence of the good standing of the Company in its jurisdiction of organization and its good standing as a foreign entity in the jurisdictions set forth on Schedule III hereto, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions;
(j) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of each Time of Delivery, as the case may be, prevent the sale of the Shares; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of each Time of Delivery, as the case may be, prevent the sale of the Shares;
(k) None of the Underwriters shall have discovered and disclosed to the Company on or prior to the Time of Delivery that the Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact which, in the reasonable opinion of counsel for trading the Underwriters, is material or omits to state any fact which, in the reasonable opinion of such counsel, is material and quotation on is required to be stated therein or is necessary to make the NYSEstatements therein not misleading, or that the Pricing Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus or any amendment or supplement thereto contains an untrue statement of fact which, in the reasonable opinion of such counsel, is material or omits to state any fact which, in the reasonable opinion of such counsel, is material and is necessary in order to make the statements, in the light of the circumstances in which they were made, not misleading;
(l) All corporate proceedings incident to the authorization, form and validity of each of this Agreement, the Shares, the Registration Statement, the Pricing Disclosure Package, each Issuer Free Writing Prospectus and the Prospectus and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters;
(m) The Company shall have obtained and delivered furnished to the Underwriters executed copies Representatives a certificate, dated each Time of a lock-up agreement from each Delivery, of its directors President and executive officersits Chief Financial Officer stating in their respective capacities as officers of the Company on behalf of the Company that (i) no stop order suspending the effectiveness of the Registration Statement (including, for avoidance of doubt, any Rule 462(b) Registration Statement), or any post-effective amendment thereto, shall be in effect and no proceedings for such purpose shall have been instituted or, to their knowledge, threatened by the Commission, (ii) for the period from and including the date of this Agreement through and including such Time of Delivery, there has not occurred any Material Adverse Effect, (iii) as of such Time of Delivery, the Selling Stockholders representations and each other stockholder identified warranties of the Company in this Agreement are true and correct and the Company has complied with all agreements and satisfied all conditions on Schedule IV heretoits part to be performed or satisfied hereunder at or prior to such Closing Date, and (iv) to their knowledge, there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the form attached Pricing Disclosure Package, any Material Adverse Effect in the financial position or results of operations of the Company, or any change or development that, singularly or in the aggregate, would reasonably be expected to involve a Material Adverse Effect, except as Annex I heretoset forth or contemplated in the Pricing Disclosure Package and the Prospectus;
(n) The Company shall have complied with the provisions of Section 5(c) hereof with respect furnished to the furnishing Representatives a Secretary’s Certificate of prospectuses on the New York Business Day next succeeding Company, in form and substance reasonably satisfactory to counsel for the date Underwriters and customary for the type of offering contemplated by this Agreement; and
(o) The Company and the Selling Stockholders shall have furnished or caused to be furnished to you at such Time of Delivery certificates of officers of the Company and of the Selling Stockholders, respectively, satisfactory to you as to the accuracy Representatives a certificate, dated such Closing Date, of the representations and warranties of the Company and the Selling Stockholders, respectively, herein at and as of such Time of Delivery, as to the performance by the Company and the Selling Stockholders of all of their respective obligations hereunder to be performed at or prior to such Time of Delivery, and the Company shall have furnished or caused to be furnished certificates as to the matters set forth in subsections (a) of this Section and as to such other matters as you may reasonably request.
(p) The Company shall have furnished or caused to be furnished to you at such Time of Delivery a certificate of the Executive Vice President, its Chief Financial Officer and Treasurer to Officer, substantially in the effect that:
(i) He is familiar with the internal accounting records form of the CompanyExhibit B hereto.
(ii) He has reviewed the “Recent Developments” section contained in both the Preliminary Prospectus and the Prospectus. The information presented in such Recent Developments section (A) has been prepared in good faith and based upon assumptions that he believes are reasonable and consistent with the operations of the Company and (B) is a fair estimate in all material respects of the Company’s total revenues and net income for the three months ended June 30, 2011 and has been derived from the Company’s accounting and/or financial records.
Appears in 1 contract
Conditions of Underwriters’ Obligations. The several obligations of the Underwriters hereunder, as hereunder are subject to the Shares to be delivered at each Time accuracy of Delivery, shall be subject, in their discretion, to the condition that all representations and warranties and other statements on the part of the Company and of on the Selling Stockholders herein aredate hereof, at and as the time of such Time purchase and, if applicable, at the additional time of Delivery, true and correctpurchase, the condition that performance by the Company and the Selling Stockholders shall have performed all of its and their obligations hereunder theretofore and to be performed, and the following additional conditionsconditions precedent:
(a) The Company shall furnish to you at the time of purchase and, if applicable, at the additional time of purchase, an opinion of Jones Day, counsel for the Company, in the form of Exhibit C herexx xxdressed to the Underwriters, and dated the time of purchase or the additional time of purchase, as the case may be, with reproduced copies for each of the other Underwriters and in form and substance satisfactory to Latham & Watkins LLP, counsel for the Underwriters.
(b) Xxx shaxx xxxx received from Deloitte & Touche LLP letters dated, respectively, the date of this Agreement, the time of purchase and, if applicable, the additional time of purchase, and addressed to the Underwriters (with reproduced copies for each of the Underwriters) in the forms heretofore approved by UBS.
(c) You shall have received at the time of purchase and, if applicable, at the additional time of purchase, the favorable opinion of Latham & Watkins LLP, counsel for the Underwriters, dated the time of xurcxxxx xx the additional time of purchase, as the case may be, and in form and substance satisfactory to the Underwriters.
(d) No Prospectus or amendment or supplement to the Registration Statement or the Prospectus shall have been filed to which you object in writing.
(e) The Registration Statement shall become effective not later than 5:30 P.M. New York City time on the date of this Agreement and, if Rule 430A under the Act is used, the Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(a) hereof; all material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433 under the Act; if the Company has elected to rely upon Rule 462(b) under the Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m., Washington, D.C. time, on the date of this Agreement; no stop order suspending the effectiveness of the Registration Statement at or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction;
(b) Xxxxx Xxxxx L.L.P., counsel for the Underwriters, shall have furnished to you such written opinion or opinions, dated such Time of Delivery, in form and substance reasonably satisfactory to you, with respect to such matters as you may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;
(c) Xxxxxx & Xxxxxx L.L.P., counsel for the Company, shall have furnished to you their written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex II.
(d) Xxxxxxxx X. Xxxxx, General Counsel and Corporate Secretary of the Company, shall have furnished to you his written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex III.
(e) Xxxx Xxxxxxxxxx & Xxxxxxxxx LLP, special Indiana counsel for the Company, shall have furnished to you their written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex IV.
(f) Xxxxxx LLP, counsel for each of the Selling Stockholders, as indicated in Schedule IIA hereto, shall have furnished to you their written opinion with respect to each of the Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex V.
(g) Such local counsel as you shall reasonably require shall have furnished to you their written opinion with respect to each of the foreign Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex VI.
(h) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m.before 5:30 P.M., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to second full business day after the date of this Agreement and also at each Time Agreement.
(f) Prior to the time of Deliverypurchase, UHYand, LLP shall have furnished to you a letter or lettersif applicable, dated the respective dates additional time of delivery thereofpurchase, in form and substance satisfactory to you;
(i) On the date of the Prospectus at a time prior no stop order with respect to the execution effectiveness of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent shall have been issued under the Act or proceedings initiated under Section 8(d) or 8(e) of the Act; (ii) the Registration Statement and all amendments thereto shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the date statements therein not misleading; and (iii) the Prospectus and all amendments or supplements thereto shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they are made, not misleading.
(g) Between the time of execution of this Agreement and also at each Time the time of Delivery, Flackman Xxxxxxx & Xxxxxx, P.A. shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) Neither the Company nor the Subsidiaries shall have sustained since the date of the latest audited financial statements included in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, other than as set forth or contemplated in the Pricing Prospectus and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of the Company purchase or the Subsidiaries or any changeadditional time of purchase, as the case may be, no material adverse change or any development involving a prospective changematerial adverse change in the business, in or affecting the general affairsproperties, management, financial position, stockholders’ equity condition or results of operations of the Company and the SubsidiariesSubsidiaries taken as a whole shall occur or become known.
(h) The Company will, other than at the time of purchase and, if applicable, at the additional time of purchase, deliver to you a certificate of its Chief Executive Officer and its Chief Financial Officer to the form attached as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause Exhibit B hereto.
(i) or (ii), is You shall have received signed Lock-up Agreements referred to in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Pricing Prospectus;Section 3(r) hereof.
(k) On or after the Applicable Time, there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the NYSE; (ii) a suspension or material limitation in trading in the Company’s securities on the NYSE; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Texas State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus;
(l) The Shares to be sold at such Time of Delivery shall have been duly admitted for trading and quotation on the NYSE;
(mj) The Company shall have obtained and delivered to the Underwriters executed copies of a lock-up agreement from each of its directors and executive officers, the Selling Stockholders and each other stockholder identified on Schedule IV hereto, in the form attached as Annex I hereto;
(n) The Company shall have complied with the provisions of Section 5(c) hereof with respect to the furnishing of prospectuses on the New York Business Day next succeeding the date of this Agreement; and
(o) The Company and the Selling Stockholders shall have furnished or caused to be furnished to you at such Time of Delivery other documents and certificates of officers of the Company and of the Selling Stockholders, respectively, satisfactory to you as to the accuracy and completeness of any statement in the Registration Statement and the Prospectus as of the representations and warranties time of purchase and, if applicable, the Company and the Selling Stockholdersadditional time of purchase, respectively, herein at and as of such Time of Delivery, as to the performance by the Company and the Selling Stockholders of all of their respective obligations hereunder to be performed at or prior to such Time of Delivery, and the Company shall have furnished or caused to be furnished certificates as to the matters set forth in subsections (a) of this Section and as to such other matters as you may reasonably request.
(pk) The Company Shares shall have furnished been approved for listing on the New York Exchange, subject only to notice of issuance at or caused to be furnished to you at such Time of Delivery a certificate of the Executive Vice President, Chief Financial Officer and Treasurer prior to the effect that:
(i) He is familiar with time of purchase or the internal accounting records additional time of purchase, as the Companycase may be.
(ii) He has reviewed the “Recent Developments” section contained in both the Preliminary Prospectus and the Prospectus. The information presented in such Recent Developments section (A) has been prepared in good faith and based upon assumptions that he believes are reasonable and consistent with the operations of the Company and (B) is a fair estimate in all material respects of the Company’s total revenues and net income for the three months ended June 30, 2011 and has been derived from the Company’s accounting and/or financial records.
Appears in 1 contract
Sources: Underwriting Agreement (International Coal Group, Inc.)
Conditions of Underwriters’ Obligations. Termination by the ------------------------------------------------------------ Underwriters. ------------
(a) The obligations of the Underwriters hereunder, as to purchase and pay for the Senior Debt Securities shall be subject to the Shares to be delivered at each Time of Delivery, shall be subject, in their discretion, to the condition that all representations and warranties and other statements of the Company and of the Selling Stockholders herein are, at and as of such Time of Delivery, true and correct, the condition that the Company and the Selling Stockholders shall have performed all of its and their obligations hereunder theretofore to be performed, and the following additional conditions:
(ai) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(a) hereof; all material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433 under the Act; if the Company has elected to rely upon Rule 462(b) under the Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m., Washington, D.C. time, on the date of this Agreement; no No stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued be in effect on the Closing Date and no proceeding proceedings for that purpose shall be pending before, or to the knowledge of the Company threatened by, the Commission on such date. The Representative shall have been initiated received, prior to payment for the Senior Debt Securities, a certificate dated the Closing Date and signed by any Chief Executive Officer, any Chief Financial Officer, any Executive Vice President or any Senior Vice President of the Company to the effect that no such stop order is in effect and that no proceedings for such purpose are pending before or, to the knowledge of the Company, threatened by the Commission; no stop .
(ii) At the Closing Date an order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part orders of the Commission pursuant to the Holding Company Act permitting the issuance and sale of the Senior Debt Securities shall have been complied with be in full force and effect and all provisions of such order or orders heretofore entered are deemed acceptable to your reasonable satisfaction;the Representative and the Company, and all provisions of such order or orders hereafter entered shall be deemed acceptable to the Representative and the Company unless within 24 hours after receiving a copy of any such order either shall give notice to the other to the effect that such order contains an unacceptable provision.
(biii) Xxxxx Xxxxx L.L.P.At the Closing Date the Representative shall receive, on behalf of the several Underwriters, the opinions of XxXxxxx, Xxxxx, Battle & Xxxxxx, LLP., counsel for to the Company and [Underwriters' Counsel], counsel to the Underwriters, shall have furnished to you such written opinion or opinions, dated such Time of Delivery, substantially in form the forms attached hereto as Schedules III and substance reasonably satisfactory to you, with respect to such matters as you may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;
(c) Xxxxxx & Xxxxxx L.L.P., counsel for the Company, shall have furnished to you their written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex II.
(d) Xxxxxxxx X. Xxxxx, General Counsel and Corporate Secretary of the Company, shall have furnished to you his written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex III.
(e) Xxxx Xxxxxxxxxx & Xxxxxxxxx LLP, special Indiana counsel for the Company, shall have furnished to you their written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex IV.
(f) Xxxxxx LLP, counsel for each of the Selling Stockholders, as indicated in Schedule IIA hereto, shall have furnished to you their written opinion with respect to each of the Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex V.
(g) Such local counsel as you shall reasonably require shall have furnished to you their written opinion with respect to each of the foreign Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex VI.
(hiv) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Deliveryon the Closing Date, UHY, LLP the Representative shall have furnished to you received from Deloitte & Touche LLP a letter or lettersaddressed to the Representative, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Deliverythe Closing Date, Flackman Xxxxxxx & Xxxxxxrespectively, P.A. shall have furnished to you a letter or letters, dated (A) confirming that they are independent public accountants as required by the respective dates of delivery thereofSecurities Act; (B) stating in effect that, in form and substance satisfactory to you;
(i) Neither their opinion, the Company nor the Subsidiaries shall have sustained since the date of the latest audited financial statements included in or incorporated by reference in the Pricing Registration Statement and the Prospectus any loss or interference and audited by them as stated in their report incorporated by reference in the Registration Statement (the Audited Financial Statements), comply as to form in all material respects with its business from firethe applicable accounting requirements adopted pursuant to the Securities Exchange Act; (C) stating, explosionin effect, flood or other calamity, whether or not that on the basis of a reading of the minutes of the meetings of the Board of Directors of the Company and of committees of the Board since the end of the period covered by insurancethe Audited Financial Statements, or from any labor dispute or court or governmental action, order or decree, other than as set forth or contemplated a reading of the unaudited financial statements incorporated by reference in the Pricing Prospectus and (ii) since if any), of the respective dates as unaudited statement of income for any interim period for which information is given included in the Pricing Prospectus there shall under the caption "Selected Financial Information" or any section updating such information, and of the latest available unaudited financial statements of the Company covering a period of twelve months ending after the end of the period covered by the Audited Financial Statements (if any), and inquiries of officials of the Company responsible for financial and accounting matters (which procedures did not have been any change constitute an audit made in accordance with generally accepted auditing standards), nothing came to their attention that caused them to believe that such unaudited financial statements incorporated by reference in the capital stock Prospectus are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the Audited Financial Statements; and (D) stating, in effect, that on the basis of more limited procedures than those set forth in the foregoing clause (C), consisting merely of the reading of the minutes referred to in said clause and inquiries of officials of the Company responsible for financial and accounting matters, nothing came to their attention at a date not more than five business days prior to the date of such letter that caused them to believe that (1) at such date there was any decrease in common stockholder's equity or long-term any increase in funded debt of the Company or any decrease in net assets as compared with the Subsidiaries or any changeamounts shown in the balance sheet included in the most recent financial statements incorporated by reference, or (2) for the period from the date of the most recent unaudited financial statements included or incorporated by reference in the Registration Statement and the Prospectus to a date not more than five business days prior to the date of such letter there were any development involving a prospective changedecreases, as compared with the corresponding period in the preceding year, in the operating revenues, operating income or affecting net income, except (with respect to (1) or (2)) in all instances for changes or decreases that the Registration Statement discloses have occurred or may occur; provided, however, that said letters may vary from the requirements specified in clause (D) hereof in such manner as the Representative in its sole discretion may deem to be acceptable. Said letters shall also state that the dollar amounts, percentages and other financial information (in each case to the extent that such dollar amounts, percentages and other financial information, either directly or by analysis or computation, are derived from the general affairsaccounting records of the Company) that appear (1) in the Prospectus under the captions "Selected Financial Information" and "Other Selected Data" and under any caption contained in a supplement to the Prospectus updating such dollar amounts, managementpercentages and other financial information (limited to total assets and plant expenditures), (2) in the Company's most recent Annual Report on Form 10-K under the caption "Selected Financial Data" or (3) in the Registration Statement under the caption "Ratio of Earnings to Fixed Charges" have been compared with the general accounting records of the Company and such dollar amounts, percentages and financial position, stockholders’ equity or results of operations information have been found to be in agreement with the accounting records of the Company and the Subsidiariescomputations have been found to be arithmetically correct. Each such letter shall relate to the Registration Statement and Prospectus as amended or supplemented to the date of each such letter.
(v) Subsequent to the execution of this Agreement and prior to the Closing Date, (A) except as reflected in, or contemplated by, the Registration Statement and the Prospectus, there shall not have occurred (1) any change in the Senior Debt Securities of the Company (other than as set forth or contemplated a decrease in the Pricing Prospectusaggregate principal amount thereof outstanding), (2) any material adverse change in the general affairs, financial condition or earnings of the Company or (3) any material transaction entered into by the Company other than a transaction in the ordinary course of business, the effect of which, which in any each such case described in clause (i) or (ii), is in the judgment of the Representatives Representative is so material and so adverse as to make that it impracticable or makes it inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery Senior Debt Securities on the terms and in the manner contemplated in the Pricing Prospectus;
Prospectus and this Agreement, or (kB) On or after the Applicable Time, there shall not have occurred any of the following: (i1) a downgrading in the rating accorded the Company's senior unsecured notes by any "nationally recognized statistical rating organization" (as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Securities Act), (2) any general suspension or material limitation in of trading in securities generally on the NYSE; New York Stock Exchange or any material limitation on prices for such trading or any restrictions on the distribution of securities established by the New York Stock Exchange or by the Commission or by any federal or state agency or by the decision of any court, (ii3) a suspension or material limitation in trading in the Company’s securities on the NYSE; (iii) a general banking moratorium on commercial banking activities declared either by either Federal federal or New York or Texas State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv4) the any outbreak or escalation of major hostilities involving in which the United States or the is involved, any declaration of war by the United States Congress or any other substantial national or international calamity or crisis resulting in the declaration of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial8 emergency, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) which outbreak, escalation, declaration, calamity or (v) crisis, in the reasonable judgment of the Representatives Representative, makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery Senior Debt Securities on the terms and in the manner contemplated in the Prospectus;Prospectus and in this Agreement.
(lvi) The Shares to be sold at such Time of Delivery shall have been duly admitted for trading and quotation on On the NYSE;
(m) The Company shall have obtained and delivered to the Underwriters executed copies of a lock-up agreement from each of its directors and executive officersClosing Date, the Selling Stockholders and each other stockholder identified on Schedule IV hereto, in the form attached as Annex I hereto;
(n) The Company shall have complied with the provisions of Section 5(c) hereof with respect to the furnishing of prospectuses on the New York Business Day next succeeding the date of this Agreement; and
(o) The Company and the Selling Stockholders shall have furnished or caused to be furnished to you at such Time of Delivery certificates of officers of the Company and of the Selling Stockholders, respectively, satisfactory to you as to the accuracy of the representations and warranties of the Company in this Agreement shall be true and the Selling Stockholders, respectively, herein at correct as if made on and as of such Time of Delivery, as to the performance by the Company and the Selling Stockholders of all of their respective obligations hereunder to be performed at or prior to such Time of Deliverydate, and the Company shall have furnished or caused to be furnished certificates as to performed all obligations and satisfied all conditions required of it under this Agreement; and, at the matters set forth in subsections (a) of this Section and as Closing Date, the Representative shall have received a certificate to such other matters as you may reasonably request.
(p) The Company shall have furnished or caused to be furnished to you at such Time of Delivery a certificate of the effect signed by any Chief Executive Officers, any Chief Financial Officer, any Executive Vice President, Chief Financial Officer and Treasurer to the effect that:
(i) He is familiar with the internal accounting records President or any Senior Vice President of the Company.
(iivii) He has reviewed All legal proceedings to be taken in connection with the “Recent Developments” section contained issuance and sale of the Senior Debt Securities shall have been satisfactory in both form and substance to [Underwriters' Counsel].
(b) In case any of the Preliminary Prospectus conditions specified above in Section 7(a) shall not have been fulfilled, this Agreement may be terminated by the Representative upon mailing or delivering written notice thereof to the Company; provided, however, that in case the conditions specified in subsections 7(a)(v) and (vi) shall not have been fulfilled, this Agreement may not be so terminated by the Representative unless Underwriters who have agreed to purchase in the aggregate greater than 50% or more of the aggregate principal amount of the Senior Debt Securities shall have consented to such termination and the Prospectusaforesaid notice shall so state. The information presented Any such termination shall be without liability of any party to any other party except as otherwise provided in such Recent Developments section Section 9 and Sections 6(b), 6(g) and 7(c) hereof.
(Ac) has been prepared in good faith and based upon assumptions that he believes are reasonable and consistent with If this Agreement shall be terminated by the operations Representative pursuant to Section 7(b) above or because of any failure or refusal on the part of the Company and (B) is a fair estimate in all material respects to comply with the terms or to fulfill any of the Company’s total revenues conditions of this Agreement, or if for any reason the Company shall be unable to perform its obligations under this Agreement, then in any such case, the Company will reimburse the Underwriters, severally, for all out-of-pocket expenses (in addition to the fees and net income for disbursements of their outside counsel as provided in Section 6(g)) reasonably incurred by such Underwriters in connection with this Agreement or the three months ended June 30offering contemplated hereunder and, 2011 upon such reimbursement, the Company shall be absolved from any further liability hereunder, except as provided in Section 6(b) and has been derived from the Company’s accounting and/or financial recordsSection 9.
Appears in 1 contract
Sources: Underwriting Agreement (Virginia Electric & Power Co)
Conditions of Underwriters’ Obligations. The respective obligations of the several Underwriters hereunder, as hereunder are subject to the Shares to be delivered at each Time accuracy, when made and on the Closing Date, of Delivery, shall be subject, in their discretionthe representations and warranties of NFC and the Seller contained herein, to the condition that all representations and warranties and other accuracy of the statements of NFC or the Company and of Seller made in any certificates pursuant to the Selling Stockholders herein areprovisions hereof, at and as of such Time of Delivery, true and correct, to the condition that performance by the Company and the Selling Stockholders shall have performed all Seller of its and their obligations hereunder theretofore to be performedhereunder, and to each of the following additional terms and conditions:
(a) The Prospectus shall have been filed with Prior to the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(a) hereof; all material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433 under the Act; if the Company has elected to rely upon Rule 462(b) under the ActClosing Date, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m., Washington, D.C. time, on the date of this Agreement; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; no stop order suspending and any request of the Commission for inclusion of additional information in the Registration Statement or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission otherwise shall have been complied with to your the reasonable satisfaction;satisfaction of the Representative; and the Seller shall have filed the Prospectus Supplement with the Commission pursuant to Rule 424(b) of the Rules and Regulations within the time period prescribed by such rule.
(b) Xxxxx Xxxxx L.L.P.All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Notes, the Titling Trust Documents, the Lease Purchase Agreement, the Purchase Agreement, the Administration Agreement, the Further Transfer and Servicing Agreements, the Registration Statement and the Prospectus, and all other legal matters relating to such agreements and the transactions contemplated hereby and thereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Seller shall have furnished to you such written opinion or opinions, dated such Time of Delivery, in form and substance reasonably satisfactory to you, with respect to such matters as you may reasonably request, and such counsel shall have received such papers all documents and information as that they may reasonably request to enable them to pass upon such matters;.
(c) Xxxxxx Xxxxxxxx & Xxxxxx L.L.P., counsel for the Company, Xxxxx shall have furnished to you the Representative their written opinionopinions, as counsel to the Seller, addressed to the Underwriters and dated such Time of Deliverythe Closing Date, in form and substance reasonably satisfactory to youthe Representative, to regarding general corporate matters, enforceability of the effect set forth on Annex IINotes, the Titling Trust Documents (other than the Titling Trust Agreement, the Series 2003-A Portfolio Supplement and the Series 2003-A Portfolio Certificate), the Lease Purchase Agreement, the Purchase Agreement, the Administration Agreement, and the Further Transfer and Servicing Agreements (other than the Trust Agreement), creation and perfection of security interests, securities laws and other matters.
(d) Xxxxxxxx X. & Xxxxx shall have furnished to the Representative their written opinion, as counsel to the Seller, addressed to the Underwriters and dated the Closing Date, in form and substance reasonably satisfactory to the Representative, with respect to with respect to the characterization of the transfer of the Series 2003-A Portfolio Interest and the Series 2003-A Portfolio Certificate by Harco Leasing to NFC pursuant to the Lease Purchase Agreement and the characterization of the transfer of the Receivables and the Related Security with respect to such Receivables by NFC to the Seller pursuant to the Purchase Agreement as a sale, the non-consolidation of the Titling Trust with Harco Leasing or Navistar Financial and the non-consolidation of NFC and the Seller.
(e) The Representative shall have received from Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to such matters as the Representative may require, and the Seller shall have furnished to such counsel such documents as they reasonably request for enabling them to pass upon such matters.
(f) Pryor, Cashman, Xxxxxxx & Xxxxx shall have furnished to the Representative their written opinion, as counsel to the Owner Trustee, addressed to the Underwriters and dated the Closing Date, in form and substance reasonably satisfactory to the Representative.
(g) Xxxxxxxx, Xxxxxx & Finger shall have furnished to the Representative their written opinion, as counsel to the Titling Trust, addressed to the Underwriters and dated the Closing Date, in form and substance reasonably satisfactory to the Representative with respect to the Titling Trust, including the enforceability of the Titling Trust Agreement, the Series 2003-A Portfolio Supplement, the Series 2003-A Portfolio Certificate and the Trust Agreement.
(h) Xxxxxxxx, Xxxxxx & Finger shall have furnished to the Representative their written opinion, as counsel to the Trust, addressed to the Underwriters and dated the Closing Date, in form and substance reasonably satisfactory to the Representative.
(i) Xxxxx, General Counsel Xxxxxx & Xxxxxx shall have furnished to the Representative their written opinion, as counsel to the Indenture Trustee, addressed to the Underwriters and Corporate Secretary of dated the CompanyClosing Date, in form and substance reasonably satisfactory to the Representative.
(j) Xxxxxx Xxxxxxxx LLP, counsel to the Delaware Trustee, shall have furnished to you his the Representative their written opinion, as counsel to the Delaware Trustee, addressed to the Underwriters and dated such Time of Deliverythe Closing Date, in form and substance reasonably satisfactory to you, to the effect set forth on Annex IIIRepresentative.
(ek) Xxxx Xxxxxxxxxx Xxxxxx & Xxxxxxxxx LLPXxxxxxx, special Indiana counsel for to the CompanyCollateral Agent, who shall be reasonably acceptable to the Representative, shall have furnished to you their the Representative his written opinion, as counsel to the Collateral Agent, addressed to the Underwriters and dated such Time of Deliverythe Closing Date, in form and substance reasonably satisfactory to youthe Representative.
(l) The Representative shall have received a letter dated the date hereof (the "Procedures Letter") from a firm of independent nationally recognized certified public accountants acceptable to the Representative verifying the accuracy of such financial and statistical data contained in the Prospectus as the Representative shall deem advisable. In addition, if any amendment or supplement to the Prospectus made after the date hereof contains financial or statistical data, the Representative shall have received a letter dated the Closing Date confirming the Procedures Letter and providing additional comfort on such new data.
(m) The Representative shall have received certificates, dated the Closing Date, of any two of the Chairman of the Board, the President, any Vice President and the chief financial officer of each of Harco Leasing, NFC and the Seller stating that (A) the representations and warranties of Harco Leasing, NFC or the Seller, as the case may be, contained in this Agreement, the Purchase Agreement, the Titling Trust Documents, the Lease Purchase Agreement, the Administration Agreement and the Further Transfer and Servicing Agreements are true and correct on and as of the Closing Date, (B) Harco Leasing, NFC or the Seller, as the case may be, has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder and under such agreements at or prior to the Closing Date, (C) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the effect set forth on Annex IV.
(f) Xxxxxx LLPbest of his or her knowledge, counsel for each of are contemplated by the Selling StockholdersCommission, as indicated in Schedule IIA hereto, shall have furnished to you their written opinion with respect to each of the Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex V.
(g) Such local counsel as you shall reasonably require shall have furnished to you their written opinion with respect to each of the foreign Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex VI.
(h) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, UHY, LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, Flackman Xxxxxxx & Xxxxxx, P.A. shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) Neither the Company nor the Subsidiaries shall have sustained since the date of the latest audited financial statements included in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, other than as set forth or contemplated in the Pricing Prospectus and (iiD) since the respective dates as of which information is given in the Pricing Prospectus January 31, 2003, there shall not have has been any no material adverse change in the capital stock financial position or long-term debt results of operations of Harco Leasing, NFC, the Company Seller or the Subsidiaries Trust or any change, or any development involving including a prospective change, in or affecting the general affairscondition (financial or otherwise), management, financial position, stockholders’ equity or results of operations operations, business or prospects of Harco Leasing, NFC, the Company and Seller or the Subsidiaries, other than Trust except as set forth in or contemplated by the Registration Statement and the Prospectus. Any officer making such certification may rely upon his or her knowledge as to the proceedings pending or threatened.
(n) The Notes shall have been given a rating by S&P or Xxxxx'x that is at least equal to or better than the rating required for such class of Notes as set forth in the Pricing ProspectusProspectus Supplement.
(o) Subsequent to the execution and delivery of this Agreement there shall not have occurred any of the following: (i) trading in securities generally on the New York Stock Exchange, the American Stock Exchange or the over-the-counter market shall have been suspended or limited, or minimum prices shall have been established on either of such exchanges or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, or trading in securities of NFC on any exchange or in the over-the-counter market shall have been suspended or (ii) a general moratorium on commercial banking activities shall have been declared by Federal or New York State authorities or (iii) an outbreak or escalation of hostilities or a declaration by the United States of a national emergency or war or such a material adverse change in general economic, political or financial conditions (or the effect of whichinternational conditions on the financial markets in the United States shall be such) as to make it, in any such case described in clause (i) or (ii), is in the judgment of a majority in interest of the Representatives so material and adverse as to make it several Underwriters, impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Pricing Prospectus;
(k) On or after the Applicable Time, there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the NYSE; (ii) a suspension or material limitation in trading in the Company’s securities on the NYSE; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Texas State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery Notes on the terms and in the manner contemplated in the Prospectus;
(l) The Shares to be sold at such Time of Delivery shall have been duly admitted for trading and quotation on the NYSE;
(m) The Company shall have obtained and delivered to the Underwriters executed copies of a lock-up agreement from each of its directors and executive officers, the Selling Stockholders and each other stockholder identified on Schedule IV hereto, in the form attached as Annex I hereto;
(n) The Company shall have complied with the provisions of Section 5(c) hereof with respect to the furnishing of prospectuses on the New York Business Day next succeeding the date of this Agreement; and
(o) The Company and the Selling Stockholders shall have furnished or caused to be furnished to you at such Time of Delivery certificates of officers of the Company and of the Selling Stockholders, respectively, satisfactory to you as to the accuracy of the representations and warranties of the Company and the Selling Stockholders, respectively, herein at and as of such Time of Delivery, as to the performance by the Company and the Selling Stockholders of all of their respective obligations hereunder to be performed at or prior to such Time of Delivery, and the Company shall have furnished or caused to be furnished certificates as to the matters set forth in subsections (a) of this Section and as to such other matters as you may reasonably request.
(p) The Company Certificates shall have furnished been delivered to the Seller in accordance with the Trust Agreement. All opinions, letters, evidence and certificates mentioned above or caused elsewhere in this Agreement shall be deemed to be furnished to you at such Time of Delivery a certificate of the Executive Vice President, Chief Financial Officer and Treasurer to the effect that:
(i) He is familiar in compliance with the internal accounting records of the Company.
(ii) He has reviewed the “Recent Developments” section contained provisions hereof only if they are in both the Preliminary Prospectus form and the Prospectus. The information presented in such Recent Developments section (A) has been prepared in good faith and based upon assumptions that he believes are reasonable and consistent with the operations of the Company and (B) is a fair estimate in all material respects of the Company’s total revenues and net income substance reasonably satisfactory to counsel for the three months ended June 30, 2011 and has been derived from the Company’s accounting and/or financial recordsUnderwriters.
Appears in 1 contract
Sources: Underwriting Agreement (Navistar Financial Retail Receivables Corporation)
Conditions of Underwriters’ Obligations. The respective obligations of the several Underwriters hereunder, as hereunder are subject to the Shares to be delivered at each Time accuracy, when made and on the Closing Date, of Delivery, shall be subject, in their discretionthe representations and warranties of the Representing Parties contained herein, to the condition that all representations and warranties and other accuracy of the statements of the Company and Representing Parties made in any certificates pursuant to the provisions hereof, to the performance by the Representing Parties of the Selling Stockholders herein are, at and as of such Time of Delivery, true and correct, the condition that the Company and the Selling Stockholders shall have performed all of its and their respective obligations hereunder theretofore to be performedhereunder, and to each of the following additional terms and conditions:
(a) The Prospectus shall have been filed with Prior to the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(a) hereof; all material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433 under the Act; if the Company has elected to rely upon Rule 462(b) under the ActClosing Date, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m., Washington, D.C. time, on the date of this Agreement; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; no stop order suspending and any request of the Commission for inclusion of additional information in the Registration Statement or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission otherwise shall have been complied with to your the reasonable satisfaction;satisfaction of the Representatives; and the Depositor shall have filed the Prospectus and the Preliminary Prospectus and the Final Terms FWP with the Commission pursuant to Rule 424(b) and Rule 433 of the Securities Act, as applicable, within the time period prescribed by such rules.
(b) Xxxxx Xxxxx L.L.P.All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Securities, each of the Transaction Documents, the Registration Statement and the Prospectus, and all other legal matters relating to such agreements and the transactions contemplated hereby and thereby shall be satisfactory in all material respects to counsel for the Underwriters, and the Representing Parties shall have furnished to you such written opinion or opinions, dated such Time of Delivery, in form and substance reasonably satisfactory to you, with respect to such matters as you may reasonably request, and such counsel shall have received such papers all documents and information as that they may reasonably request to enable them to pass upon such matters;. A/75910535.7 15
(c) Xxxxxx & Xxxxxx L.L.P.The Trust Agreement shall have been duly executed and delivered by the Depositor and the Owner Trustee and the Certificates shall have been duly executed and delivered by the Owner Trustee on behalf of the Issuer and duly authenticated by the Owner Trustee.
(d) The Sale and Servicing Agreement shall have been duly executed and delivered by the Depositor, the Bank, as Seller and Servicer, the Issuer and the Indenture Trustee.
(e) The Indenture shall have been duly executed and delivered by the Issuer and the Indenture Trustee and the Notes shall have been duly executed and delivered by the Owner Trustee on behalf of the Issuer and duly authenticated by the Indenture Trustee.
(f) The Receivables Purchase Agreement shall have been duly executed and delivered by the Seller and the Depositor.
(g) The Representatives shall have received evidence satisfactory to them and their counsel for that within ten days of the CompanyClosing Date, UCC-1 financing statements required to be filed on or prior to the Closing Date pursuant to the Transaction Documents have been filed.
(h) Xxxxxxx X. Xxxxxx, Esq., Vice President and Banking Counsel of the Bank, shall have furnished to you their the Representatives his written opinion, addressed to the Representatives and dated such Time the Closing Date, regarding the due organization and power and authority of Deliverythe Bank, the due authorization, execution and delivery by the Bank of the Transaction Documents to which it is a party, no conflicts or violations of its charter or by-laws, contracts or law and other related matters, in form and substance reasonably satisfactory to you, to the effect set forth on Annex IIRepresentatives and their counsel.
(di) Xxxxxxxx X. XxxxxXxxxxxxx, General Counsel and Corporate Secretary of Xxxxxx & Finger, P.A., special Delaware counsel to the CompanyDepositor, shall have furnished to you his the Representatives their written opinion, as counsel to the Depositor, addressed to the Representatives and dated such Time the Closing Date, regarding (i) the due organization of Deliverythe Depositor and (ii) other general Delaware law matters with respect to the Depositor, including, without limitation, the due authorization, execution and delivery of the Transaction Documents by the Depositor, in each case, in form and substance reasonably satisfactory to you, to the effect set forth on Annex IIIRepresentatives and their counsel.
(ej) Xxxx Xxxxxxxxxx Xxxxxxxx, Xxxxxx & Xxxxxxxxx LLPXxxxxx, P.A., special Indiana Delaware counsel for to the CompanyIssuer, shall have furnished to you the Representatives their written opinion, dated such Time of Delivery, in form and substance satisfactory to you, as counsel to the effect set forth on Annex IV.
Issuer, addressed to the Representatives and dated the Closing Date, regarding (fi) Xxxxxx LLP, counsel for each the due organization of the Selling StockholdersIssuer, as indicated in Schedule IIA hereto(ii) the enforceability of the Trust Agreement, shall have furnished to you their written opinion (iii) other general Delaware law matters with respect to each the Issuer, including, without limitation, the due authorization, execution and delivery by the Issuer of the Selling Stockholders, dated Transaction Documents to which it is a party and the First Time of Delivery, in form due authorization and substance satisfactory to you, to the effect set forth in Annex V.
(g) Such local counsel as you shall reasonably require shall have furnished to you their written opinion with respect to each issuance of the foreign Selling StockholdersCertificates, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex VI.
(h) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, UHY, LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, Flackman Xxxxxxx & Xxxxxx, P.A. shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) Neither the Company nor the Subsidiaries shall have sustained since the date of the latest audited financial statements included in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, other than as set forth or contemplated in the Pricing Prospectus and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or the Subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and the Subsidiaries, other than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Pricing Prospectus;
(k) On or after the Applicable Time, there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the NYSE; (ii) a suspension or material limitation in trading in the Company’s securities on the NYSE; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Texas State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation perfection of hostilities involving the United States or the declaration security interest created by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus;
(l) The Shares to be sold at such Time of Delivery shall have been duly admitted for trading and quotation on the NYSE;
(m) The Company shall have obtained and delivered to the Underwriters executed copies of a lock-up agreement from each of its directors and executive officers, the Selling Stockholders and each other stockholder identified on Schedule IV hereto, in the form attached as Annex I hereto;
(n) The Company shall have complied with the provisions of Section 5(c) hereof with respect to the furnishing of prospectuses on the New York Business Day next succeeding the date of this Agreement; Sale and
(o) The Company and the Selling Stockholders shall have furnished or caused to be furnished to you at such Time of Delivery certificates of officers of the Company and of the Selling Stockholders, respectively, satisfactory to you as to the accuracy of the representations and warranties of the Company and the Selling Stockholders, respectively, herein at and as of such Time of Delivery, as to the performance by the Company and the Selling Stockholders of all of their respective obligations hereunder to be performed at or prior to such Time of Delivery, and the Company shall have furnished or caused to be furnished certificates as to the matters set forth in subsections (a) of this Section and as to such other matters as you may reasonably request.
(p) The Company shall have furnished or caused to be furnished to you at such Time of Delivery a certificate of the Executive Vice President, Chief Financial Officer and Treasurer to the effect that:
(i) He is familiar with the internal accounting records of the Company.
(ii) He has reviewed the “Recent Developments” section contained in both the Preliminary Prospectus and the Prospectus. The information presented in such Recent Developments section (A) has been prepared in good faith and based upon assumptions that he believes are reasonable and consistent with the operations of the Company and (B) is a fair estimate in all material respects of the Company’s total revenues and net income for the three months ended June 30, 2011 and has been derived from the Company’s accounting and/or financial records.
Appears in 1 contract
Conditions of Underwriters’ Obligations. The obligations of the Underwriters hereunder, as to the Shares to be delivered at each Time of Delivery, shall be subject, in their discretion, to the condition that all representations and warranties and other statements of the Company and of the each Selling Stockholders Stockholder herein are, at and as of such Time of Delivery, true and correct, the condition that the Company and the each Selling Stockholders Stockholder shall each have performed all of its and their respective obligations hereunder theretofore to be performed, and the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(a6(a) hereof; all material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433 under the Act; if the Company has elected to rely upon Rule 462(b) under the Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m., Washington, D.C. time, on the date of this Agreement; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction;
(b) Xxxxx Xxxxx L.L.P.Hale and Dorr LLP, counsel for the Underwritersto txx Xnderwxxxxrs, shall have furnished to you such written opinion or opinions, dated such Time of Delivery, in form and substance reasonably satisfactory to you, with respect to such this Agreement, the Registration Statement, the Prospectus, and other related matters as you may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;
(c) Xxxxxx Ropes & Xxxxxx L.L.P.Gray, counsel for to the CompanyCompany anx xxecial counsel to the Selling Stockholders, shall have furnished to you their written opinion, dated such Time of Delivery, in form and substance reasonably satisfactory to you, with respect to the effect matters set forth on in Annex II.I hereto;
(d) Xxxxxxxx X. Weingarten Schurgin Gagnebin & Xxxxx, General Counsel and Corporate Secretary of the Company, shall have furnished xxxexxxxxxxx xxxxxxxx xounsel to you his written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex III.
(e) Xxxx Xxxxxxxxxx & Xxxxxxxxx LLP, special Indiana counsel for the Company, shall have furnished to you their written opinion, dated such Time time of Delivery, delivery in form and substance reasonably satisfactory to you, to the effect set forth on Annex IV.
(f) Xxxxxx LLP, counsel for each of the Selling Stockholders, as indicated in Schedule IIA hereto, shall have furnished to you their written opinion with respect to each of the Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect matters set forth in Annex V.II hereto;
(ge) Such local counsel as you shall reasonably require shall have furnished to you their written opinion with respect to each of the foreign Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex VI.
(h) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 At 10:00 a.m., New York City Boston time, on the effective date of any the Registration Statement and the effective date of the most recently filed post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, UHYDeloitte & Touche LLP, LLP shall have furnished to you a letter or letters, dated the respective dates date of delivery thereof, in form and substance reasonably satisfactory to you;
(i) On the date of the Prospectus at a time prior , to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, Flackman Xxxxxxx & Xxxxxx, P.A. shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, effect set forth in form and substance satisfactory to youAnnex III hereto;
(i) Neither the Company nor the Subsidiaries shall any of its subsidiaries have sustained since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, other that is in each case material to the Company and its subsidiaries taken as a whole, otherwise than as set forth or contemplated in the Pricing Prospectus Prospectus, and (ii) since the respective dates as of which information is given in the Pricing Prospectus Prospectus, there shall not have been any change in the capital stock (other than issuances of Common Stock pursuant to Company stock option and stock purchase plans described in the Registration Statement and Prospectus) or long-term debt of the Company or the Subsidiaries or any change, or any development involving that is reasonably likely to result in a prospective material adverse change, in or affecting the general affairsbusiness, assets, management, financial position, stockholders’ ' equity or results of operations of the Company and the Subsidiariesits subsidiaries, other otherwise than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the your judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Pricing Prospectus;
(kg) On or after the Applicable Time, date hereof there shall not have occurred any of the following: (i) a suspension or additional material limitation governmental restrictions, not in force and effect on the date hereof, shall have been imposed upon trading in securities generally or minimum or maximum prices shall have been generally established on the NYSE; New York Stock Exchange or on the American Stock Exchange or in the over the counter market by the NASD, or trading in securities generally shall have been suspended on either such Exchange or in the over the counter market by the NASD, or a general banking moratorium shall have been established by federal or New York authorities, (ii) a suspension an outbreak of major hostilities or material limitation in trading in the Company’s securities on the NYSE; (iii) a general moratorium on commercial banking activities declared by either Federal other national or New York or Texas State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other international calamity or crisis or any substantial change in financialpolitical, political financial or economic conditions in the United States shall have occurred or elsewhereshall have accelerated or escalated to such an extent, if the effect of any such event specified in clause (iv) or (v) as, in the judgment of the Representatives Representatives, to affect materially and adversely the marketability of the Shares, or (iii) there shall be any action, suit or proceeding pending or threatened, or there shall have been any development or prospective development involving particularly the business or properties or securities of the Company or any of its subsidiaries or the transactions contemplated by this Agreement, which, in the judgment of the Representatives, has materially and adversely affected the Company's business or earnings and makes it impracticable or inadvisable to proceed with offer or sell the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the ProspectusShares;
(lh) The Shares to be sold by the Company at such Time of Delivery shall have been duly admitted accepted for trading and quotation quotation, subject to notice of issuance, on the NYSENasdaq National Market System;
(mi) The Each director and officer of the Company and each Selling Stockholder shall have obtained executed and delivered to the Underwriters executed copies of a lock-up agreement from each of its directors and executive officersyou agreements in which such holder undertakes, the Selling Stockholders and each other stockholder identified on Schedule IV heretofor 90 days or, in the form attached as Annex I hereto;
(n) The Company shall have complied with the provisions of Section 5(c) hereof with respect to the furnishing of prospectuses on the New York Business Day next succeeding after the date of this Agreementthe Prospectus, subject to certain exceptions stated therein, not to offer, sell, contract to sell or otherwise dispose of any shares of Common Stock, or any securities convertible into or exchangeable for, or any rights to purchase or acquire, shares of Common Stock, without the prior written consent of Adams, Harkness & Hill, Inc.; andaxx
(oj) The Xxe Company and the each Selling Stockholders Stockholder shall have furnished or caused to be furnished to you at such Time of Delivery certificates of officers of the Company and of the such Selling StockholdersStockholder, respectively, in their capacities as such, satisfactory to you you, as to the accuracy of the representations and warranties of the Company and the of such Selling StockholdersStockholder, respectively, herein at and as of such Time of Delivery, as to the performance by the Company and the of such Selling Stockholders Stockholder, respectively, of all of their respective its or his obligations hereunder to be performed at or prior to such Time of Delivery, and as to such other matters as you may reasonably request and the Company shall have furnished or caused to be furnished certificates as to the matters set forth in subsections (a) and (f) of this Section Section, and as to such other matters as you may reasonably request.
(p) The Company shall have furnished or caused to be furnished to you at such Time of Delivery a certificate of the Executive Vice President, Chief Financial Officer and Treasurer to the effect that:
(i) He is familiar with the internal accounting records of the Company.
(ii) He has reviewed the “Recent Developments” section contained in both the Preliminary Prospectus and the Prospectus. The information presented in such Recent Developments section (A) has been prepared in good faith and based upon assumptions that he believes are reasonable and consistent with the operations of the Company and (B) is a fair estimate in all material respects of the Company’s total revenues and net income for the three months ended June 30, 2011 and has been derived from the Company’s accounting and/or financial records.
Appears in 1 contract
Sources: Underwriting Agreement (Parlex Corp)
Conditions of Underwriters’ Obligations. The obligations of the several Underwriters hereunder, as hereunder are subject to the Shares accuracy of the representations and warranties of the Company, the Adviser and the Administrator contained in this Agreement or in certificates of any officer of the Company, the Adviser, the Administrator or any of their respective subsidiaries delivered pursuant to be delivered at each Time of Delivery, shall be subject, in their discretionthe provisions hereof, to the condition that all representations performance by the Company, the Adviser and warranties the Administrator of their respective covenants and other statements of the Company and of the Selling Stockholders herein are, at and as of such Time of Delivery, true and correct, the condition that the Company and the Selling Stockholders shall have performed all of its and their obligations hereunder theretofore to be performedhereunder, and to the following additional further conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(a) hereof; all material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433 under the Act; if the Company has elected to rely upon Rule 462(b) under the ActRegistration Statement, the including any Rule 462(b) Registration Statement shall have Statement, has become effective by 10:00 p.m., Washington, D.C. time, on and as of the date of this Agreement; Closing Date no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been under the 1933 Act or proceedings therefor initiated or threatened by the Commission; no stop order suspending or preventing the use of the Prospectus or , and any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information request on the part of the Commission for additional information shall have been complied with to your the reasonable satisfaction;satisfaction of counsel to the Underwriters. A final prospectus containing the Rule 430B Information and any Offering Materials (to the extent required) shall have been filed timely with the Commission.
(b) Xxxxx Xxxxx L.L.P., counsel for the Underwriters, shall have furnished to you such written opinion or opinions, dated such Time of Delivery, in form and substance reasonably satisfactory to you, with respect to such matters as you may reasonably request, and such counsel The Representatives shall have received such papers the favorable opinion, dated as of the Closing Date, and information negative assurance letter, dated as they may reasonably request to enable them to pass upon such matters;
of the Closing Date, of Eversheds Xxxxxxxxxx (cUS) Xxxxxx & Xxxxxx L.L.P.LLP, counsel for the Company, shall have furnished to you their written opinion, dated such Time of Deliverythe Adviser and the Administrator, in form and substance satisfactory to youthe Representatives and to such further effect as the Representatives may reasonably request.
(c) The Representatives shall have received from Proskauer Rose LLP, counsel for the Underwriters, together with signed or reproduced copies of such opinion, dated as of the Closing Date and addressed to the effect set forth on Annex IIUnderwriters, with respect to the issuance and sale of the Securities, this Agreement, the Registration Statement, any Rule 462(b) Registration Statement, the General Disclosure Package and the Prospectus and any amendments or supplements thereto and such other matters as the Representatives may reasonably require, and negative assurance letter, dated as of the Closing Date, and the Company, the Adviser and the Administrator shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. In giving such opinion such counsel may rely without investigation, as to all matters governed by the laws of any jurisdictions other than the law of the State of New York, the federal law of the United States and the General Corporation Law of the State of Delaware, upon the opinions of counsel satisfactory to the Representatives.
(d) Xxxxxxxx X. Xxxxx, General Counsel and Corporate Secretary of the Company, shall have furnished to you his written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex III.
(e) Xxxx Xxxxxxxxxx & Xxxxxxxxx LLP, special Indiana counsel for the Company, shall have furnished to you their written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex IV.
(f) Xxxxxx LLP, counsel for each of the Selling Stockholders, as indicated in Schedule IIA hereto, shall have furnished to you their written opinion with respect to each of the Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex V.
(g) Such local counsel as you shall reasonably require shall have furnished to you their written opinion with respect to each of the foreign Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex VI.
(h) On the date of the Prospectus at a time prior to the execution of this AgreementClosing Date, at 9:30 a.m.there shall not have been, New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, UHY, LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, Flackman Xxxxxxx & Xxxxxx, P.A. shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) Neither the Company nor the Subsidiaries shall have sustained since the date of the latest audited financial statements included in the Pricing Prospectus any loss hereof or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, other than as set forth or contemplated in the Pricing Prospectus and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in Registration Statement, the capital stock or long-term debt of the Company or the Subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company General Disclosure Package and the Subsidiaries, other than as set forth or contemplated Prospectus (in the Pricing Prospectus, the effect of which, in any such each case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Pricing Prospectus;
(k) On or after the Applicable Time, there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the NYSE; (ii) a suspension or material limitation in trading in the Company’s securities on the NYSE; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Texas State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence exclusive of any other calamity amendments or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable supplements thereto subsequent to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus;
(l) The Shares to be sold at such Time of Delivery shall have been duly admitted for trading and quotation on the NYSE;
(m) The Company shall have obtained and delivered to the Underwriters executed copies of a lock-up agreement from each of its directors and executive officers, the Selling Stockholders and each other stockholder identified on Schedule IV hereto, in the form attached as Annex I hereto;
(n) The Company shall have complied with the provisions of Section 5(c) hereof with respect to the furnishing of prospectuses on the New York Business Day next succeeding the date of this Agreement; and
(o) The Company and ), any material adverse change in the Selling Stockholders shall have furnished condition, financial or caused to be furnished to you at such Time of Delivery certificates of officers otherwise, or in the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business.
(e) On the Closing Date, the Representatives shall have received a certificate of the Selling StockholdersCompany’s Chief Executive Officer and Chief Financial Officer, respectivelydated as of the Closing Date, satisfactory to you as to the accuracy effect that (i) there has been no such material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business, (ii) the representations and warranties of the Company in this Agreement are true and correct with the Selling Stockholders, respectively, herein same force and effect as though expressly made at and as of such the Closing Date, (iii) the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date under or pursuant to this Agreement, and (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or, to their knowledge, are contemplated by the Commission.
(f) On the Closing Date, the Representatives shall have received a certificate of the Adviser’s Chief Executive Officer and Chief Financial Officer or equivalent officer(s), dated as of the Closing Date, to the effect that (i) the representations and warranties of the Adviser in this Agreement are true and correct with the same force and effect as though expressly made at and as of the Closing Date and (ii) the Adviser has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date under or pursuant to this Agreement.
(g) On the Closing Date, the Representatives shall have received a certificate of the Administrator’s Chief Executive Officer and Chief Financial Officer or equivalent officer(s), dated as of the Closing Date, to the effect that (i) the representations and warranties of the Administrator in this Agreement are true and correct with the same force and effect as though expressly made at and as of the Closing Date and (ii) the Administrator has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date under or pursuant to this Agreement.
(h) At the Execution Time, the Representatives shall have received from Ernst & Young LLP a letter dated as of the Execution Time and in form and substance satisfactory to the Representatives, containing statements and information of Deliverythe type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information of the Company contained in the Registration Statement, the General Disclosure Package, the Prospectus and any amendments or supplements thereto.
(i) On the Closing Date, the Representatives shall have received from Ernst & Young LLP a letter dated as of the Closing Date and in form and substance satisfactory to the Representatives, to the effect that they reaffirm the statements made in the letters furnished pursuant to subsection (h) of this Section 5, except that the specified date referred to shall be a date not more than three business days prior to the Closing Date.
(j) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the Closing Date, prevent the issuance or sale of the Securities; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Securities.
(k) The Securities shall be eligible for clearance and settlement through DTC.
(l) On or prior to the performance by Closing Date, the Company and the Selling Stockholders of all of their respective obligations hereunder to be performed at or prior to such Time of Delivery, and the Company Trustee shall have furnished or caused to be furnished certificates as to executed and delivered the matters set forth in subsections (a) of this Section and as to such other matters as you may reasonably requestIndenture.
(pm) The On the Closing Date, the Securities shall be rated at least BBB- by each of Fitch Ratings, Inc. and S&P Global Ratings and, since the date of this Agreement, there shall not have occurred a downgrading in the rating assigned to the Securities or any other debt securities issued or guaranteed by the Company or any of its subsidiaries by any “nationally recognized statistical rating agency,” as that term is defined by the Commission for purposes of Section 3(a)(62) under the 1934 Act, and no such organization shall have furnished provided notice to the Company or caused to be furnished to you at such Time publicly announced (1) any intended or potential downgrading of Delivery a certificate its rating of or (2) that it has under surveillance or review its rating of the Executive Vice President, Chief Financial Officer and Treasurer to Securities or any other debt securities issued or guaranteed by the effect that:
(i) He is familiar with the internal accounting records Company or any of the Companyits subsidiaries.
(iin) He has reviewed On the “Recent Developments” section Closing Date, counsel for the Underwriters shall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the issuance and sale of the Securities as herein contemplated, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, contained in both this Agreement; and all proceedings taken by the Preliminary Prospectus and the Prospectus. The information presented Company in such Recent Developments section (A) has been prepared in good faith and based upon assumptions that he believes are reasonable and consistent connection with the operations issuance and sale of the Company Securities as herein contemplated and (B) is a fair estimate in all material respects of connection with the Company’s total revenues other transactions contemplated by this Agreement shall be satisfactory in form and net income for substance to the three months ended June 30, 2011 and has been derived from the Company’s accounting and/or financial recordsRepresentatives.
Appears in 1 contract
Conditions of Underwriters’ Obligations. The obligations of the Underwriters hereunderto purchase and pay for the Firm Shares and the Additional Shares, as to the Shares to be delivered at each Time of Deliveryprovided herein, shall be subject, in their discretion, subject to the condition that all accuracy of the representations and warranties and other statements of the Company and of the Selling Stockholders herein are, at and as of such Time of Delivery, true and correct, the condition that the Company and the Selling Stockholders Shareholders herein contained, as of the date hereof and as of the Closing Date (for purposes of this Section 7 "Closing Date" shall have performed all refer to the Closing Date for the Firm Shares and the Additional Closing Date, if different, for the Additional Shares), to the absence from any certificates, opinions, written statements or letters furnished to you or to Underwriters' Counsel pursuant to this Section 7 of its any misstatement or omission, to the performance by the Company and the Selling Shareholders of their respective obligations hereunder theretofore to be performedhereunder, and to each of the following additional conditions:
(a) The Registration Statement shall have become effective and all necessary foreign and domestic regulatory or stock exchange approvals shall have been received not later than 5:30 P.M., New York time, on the date of this Agreement or at such later time and date as shall have been consented to in writing by Bear Stearns; if the Company shall have elected to rely upon Rule 430A or Rxxx 000 under the Securities Act, the Prospectus shall have been filed with the Commission in a timely fashion in accordance with Section 5(a)(i) hereof and a form of the Prospectus containing information relating to the description of the Shares and the method of distribution and similar matters shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by period; and, at or prior to the rules and regulations under the Act and in accordance with Section 5(a) hereof; all material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433 under the Act; if the Company has elected to rely upon Rule 462(b) under the Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m., Washington, D.C. time, on the date of this Agreement; Closing Date no stop order suspending the effectiveness of the Registration Statement or any part post-effective amendment thereof shall have been issued and no proceeding for that purpose proceedings therefor shall have been initiated or threatened by the Commission; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction;.
(b) Xxxxx Xxxxx L.L.P., counsel for At the Underwriters, shall have furnished to Closing Date you such written opinion or opinions, dated such Time of Delivery, in form and substance reasonably satisfactory to you, with respect to such matters as you may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;
(c) Xxxxxx the favorable written opinion of White & Xxxxxx L.L.P.Case LLP, United States counsel for the Company, dated the Closing Date addressed to the Underwriters in the form attached hereto as Annex I.
(c) At the Closing Date, you shall have furnished to you their received the favorable written opinionopinion of McW. Todman & Co., dated such Time of DeliveryBritish Virgin Islands counsel for the Company, addressex xx xhe Underwriters, in the form and substance satisfactory to you, to the effect set forth on attached hereto as Annex II.
(d) Xxxxxxxx X. XxxxxAt the Closing Date, General Counsel and Corporate Secretary you shall have received the favorable written opinion of the Company's Hong Kong counsel, shall have furnished to you his written opinionWilkinson & Grist, dated such Time of Delivery, in form and substance satisfactory to you, the Closing Date addressed to the effect set forth on Underwriterx xx xxx form attached hereto as Annex III.
(e) Xxxx Xxxxxxxxxx & Xxxxxxxxx LLPAt the Closing Date, special Indiana counsel for you shall have received the favorable written opinion of the Company's PRC counsel, shall have furnished to you their written opinionJingtian Law Firm, dated such Time of Delivery, in form and substance satisfactory to you, the Closing Date addressed to the effect set forth on Underwriters in the form attached hereto as Annex IV.
(f) Xxxxxx LLPAt the Closing Date, you shall have received the favorable written opinion of such counsel for each of the Selling StockholdersShareholders as specified in Annex V, dated the Closing Date, addressed to the Underwriters in the form attached hereto as indicated Annex V.
(i) All proceedings taken in Schedule IIA heretoconnection with the sale of the Firm Shares and the Additional Shares as herein contemplated shall be satisfactory in form and substance to Bear Stearns and to Underwriters' Counsel, and (ii) the Underwriters shall xxxx xxceived from Underwriters' counsel a favorable written opinion, dated as of the Closing Date, with respect to the incorporation of the Company, the issuance and sale of the Shares, the Registration Statement and the Prospectus and such other related matters as Bear Stearns may require, and (iii) the Company shall have furnished to you their written opinion with respect Undxxxxxxxrs' counsel such documents as they may reasonably request for the purpose of enabling them to each of the Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex V.
(g) Such local counsel as you shall reasonably require shall have furnished to you their written opinion with respect to each of the foreign Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex VIpass upon such matters.
(h) On At the date Closing Date you shall have received a certificate of the Prospectus at a time prior to Chief Executive Officer and Chief Financial Officer of the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, UHY, LLP shall have furnished to you a letter or lettersCompany, dated the respective dates of delivery thereof, in form and substance satisfactory Closing Date to you;
the effect that (i) On the condition set forth in subsection (a) of this Section 7 has been satisfied, (ii) as of the date hereof and as of the Prospectus at a time prior to Closing Date, the execution representations and warranties of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, Flackman Xxxxxxx & Xxxxxx, P.A. shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) Neither the Company nor set forth in Section 1 hereof are accurate, (iii) as of the Closing Date all agreements, conditions and obligations of the Company to be performed or complied with hereunder on or prior thereto have been duly performed or complied with, (iv) the Company and the Subsidiaries shall have not sustained since the date of the latest audited financial statements included in the Pricing Prospectus any material loss or interference with its business their respective businesses or properties from fire, explosionflood, flood hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or court any legal or governmental actionproceeding, (v) no stop order suspending the effectiveness of the Registration Statement or decree, other than as set forth any post-effective amendment thereof has been issued and no proceedings therefor have been initiated or contemplated in threatened by the Pricing Prospectus Commission and (iivi) since subsequent to the respective dates as of which information is given in the Pricing Registration Statement and the Prospectus there has not been any material adverse change or any development involving a prospective material adverse change, whether or not arising from transactions in the ordinary course of business, in or affecting (x) the business, condition (financial or otherwise), results of operations, stockholders' equity, properties or prospects of the Company and the Subsidiaries taken as a whole; (y) the long-term debt or capital stock of the Company or any of its Subsidiaries; or (z) the Offering or consummation of any of the other transactions contemplated by this Agreement, the Registration Statement and the Prospectus.
(i) At the time this Agreement is executed and at the Closing Date, you shall have received a comfort letter from Grant Thornton, independent public accountants for the Company, dated, xxxxxxxxxxxx, as of the date of this Agreement and as of the Closing Date, addressed to the Underwriters and in form and substance satisfactory to the Underwriters and Underwriters' Counsel and a comfort letter from Deloitte Touche Tohmatsu, independent public accountants of the Company during the period from 1998 to 2001, dated, respectively, as of the date of this Agreement and as of the Closing Date, addressed to the Underwriters and in form and substance satisfactory to the Underwriters and Underwriters' Counsel.
(j) You shall have received from Grant Thornton a letter stating that in its management letter with resxxxx xx xxx xxdit of the financial statements of the Company and its Subsidiaries for the year ended December 31, 2002 Grant Thornton did not report any material weaknesses.
(k) Xxxxxxxxxx xo the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been any change in the capital stock or long-term debt of the Company or the Subsidiaries any Subsidiary or any change, change or any development involving a prospective change, whether or not arising from transactions in the ordinary course of business, in the business, condition (financial or affecting the general affairsotherwise), management, financial position, stockholders’ equity or results of operations operations, shareholders' equity, properties or prospects of the Company and the Subsidiaries taken as a whole, including but not limited to the occurrence of any fire, flood, storm, explosion, accident or other calamity at any of the properties owned or leased by the Company or any of the Subsidiaries, other than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii)above, is is, in the judgment of the Representatives Bear Stearns, so material and adverse as to make it impracticable or inadvisable to inadvixxxxx xo proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery Offering on the terms and in the manner contemplated in the Pricing Prospectus;
Prospectus (k) On or after the Applicable Time, there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the NYSE; (ii) a suspension or material limitation in trading in the Company’s securities on the NYSE; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Texas State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence exclusive of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus;supplement).
(l) The Shares to be sold at such Time of Delivery Bear Stearns shall have been received a duly admitted for trading and quotation on the NYSE;
(m) The Company shall have obtained and delivered to the Underwriters executed copies of a lock-up agreement from each eacx xxxxxn who is a director or officer of its directors and executive officers, the Selling Stockholders Company that is listed Schedule III and each other stockholder identified on Schedule IV heretoSelling Shareholder, in each case substantially in the form attached hereto as Annex I hereto;VI.
(m) At the Closing Date, the Shares shall have been approved for listing on the NYSE.
(n) The Company At the Closing Date, you shall have complied with the provisions received a certificate of Section 5(c) hereof with respect to the furnishing of prospectuses on the New York Business Day next succeeding the date of this Agreement; and
(o) The Company and the Selling Stockholders shall have furnished or caused to be furnished to you at such Time of Delivery certificates of officers of the Company and an authorized representative of the Selling StockholdersShareholders, respectivelydated the Closing Date, satisfactory to you as to the accuracy of effect that the representations and warranties of the Company Selling Shareholders set forth in Section 2 hereof are accurate and that each of the Selling Stockholders, respectively, herein at Shareholders has complied with all agreements and as of such Time of Delivery, as to the performance by the Company and the Selling Stockholders of satisfied all of their respective obligations hereunder conditions on its part to be performed or satisfied hereunder at or prior to such Time of Delivery, and the Company Closing Date.
(o) Each Selling Shareholder shall have furnished or caused completed the transactions contemplated by this Agreement and its Custody Agreement, including, without limitation, delivering the Shares that it is obligated to be furnished certificates as sell to the matters set forth in subsections (a) of this Section and as to such other matters as you may reasonably requestCustodian.
(p) On or prior to the Closing Date, you shall have received a properly completed and executed United States Treasury Department Form W-8 from each Selling Shareholder.
(q) The Company shall have furnished the Underwriters and Underwriters' Counsel with such other certificates, opinions or caused to be other documents as they may have reasonably requested. If any of the conditions specified in this Section 7 shall not have been fulfilled when and as required by this Agreement, or if any of the certificates, opinions, written statements or letters furnished to you at such Time of Delivery a certificate or to Underwriters' Counsel pursuant to this Section 7 shall not be satisfactory in form and substance to Bear Stearns and to Underwriters' Counsel, all obligations of the Executive Vice PresidentUnderwritxxx xxxeunder may be cancelled by Bear Stearns at, Chief Financial Officer or at any time prior to, the Closing Date and Treasurer the obligatixxx xx the Underwriters to purchase the Additional Shares may be cancelled by Bear Stearns at, or at any time prior to, the Additional Closing Date. Notixx xx xuch cancellation shall be given to the effect that:
(i) He is familiar with the internal accounting records of the CompanyCompany in writing, or by telephone. Any such telephone notice shall be confirmed promptly thereafter in writing.
(ii) He has reviewed the “Recent Developments” section contained in both the Preliminary Prospectus and the Prospectus. The information presented in such Recent Developments section (A) has been prepared in good faith and based upon assumptions that he believes are reasonable and consistent with the operations of the Company and (B) is a fair estimate in all material respects of the Company’s total revenues and net income for the three months ended June 30, 2011 and has been derived from the Company’s accounting and/or financial records.
Appears in 1 contract
Conditions of Underwriters’ Obligations. The obligations of the Underwriters hereunderhereunder shall be subject to the performance by the District of its obligations to be performed hereunder at or prior to the Closing Date, to the accuracy of and compliance with the representations, warranties, and covenants of the District herein, as to of the Shares to be delivered at each Time time of Deliverydelivery of this Purchase Agreement and as of the Closing Date, shall be and are also subject, in their discretionthe discretion of the Underwriters, to the condition that all representations and warranties and other statements of the Company and of the Selling Stockholders herein are, at and as of such Time of Delivery, true and correct, the condition that the Company and the Selling Stockholders shall have performed all of its and their obligations hereunder theretofore to be performed, and the following additional further conditions:
(a) The Prospectus representations and warranties of the District contained herein shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules be true, complete and regulations under the Act and in accordance with Section 5(a) hereof; all material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433 under the Act; if the Company has elected to rely upon Rule 462(b) under the Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m., Washington, D.C. time, correct on the date of this Agreement; no stop order suspending the effectiveness hereof and on and as of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information Closing Date, as if made on the part of the Commission shall have been complied with to your reasonable satisfaction;Closing Date.
(b) Xxxxx Xxxxx L.L.P.At the Closing Date, counsel for the Master Trust Indenture, the Series Resolution and the Continuing Disclosure Agreement shall be in full force and effect and shall not have been amended, modified or supplemented, except in connection with the transactions contemplated by the Official Statement, and the Official Statement shall not have been supplemented or amended, except as may have been agreed to by the Underwriters.
(c) The District shall have performed and complied with all agreements and conditions contained herein and in the instruments contemplated hereby that are required to be performed or complied with by the District prior to or at the Closing Date.
(d) At or prior to the Closing Date, the Underwriters shall have received the following documents:
(i) The Official Statement, and each supplement or amendment, if any, thereto, executed on behalf of the District by the Chairman;
(ii) Certified copies of the Master Trust Indenture, Series Resolution and the Continuing Disclosure Agreement and all assignments, amendments, supplements and other instruments delivered pursuant thereto;
(iii) An opinion of Xxxxxxx Coie LLP, Chicago, Illinois, Bond Counsel, dated the date of the Closing, in substantially the form included in the Official Statement as Appendix E, and (if the foregoing opinion is not addressed to the Underwriters) a letter of such counsel, dated the Closing Date and addressed to the Underwriters, shall have furnished to you the effect that the foregoing opinion may be relied upon by the Underwriters to the same extent as if such written opinion were addressed to the Underwriters;
(iv) An opinion of the South Dakota Attorney General or opinionsAssistant or Deputy Attorney General, dated such Time the Closing Date and addressed to the Underwriters, in form satisfactory to the Underwriters;
(v) A supplemental opinion of DeliveryXxxxxxx Coie LLP, Bond Counsel, dated the Closing Date and addressed to the Underwriters, in substantially the form attached as Exhibit B to this Purchase Agreement;
(vi) An opinion of Xxxxx Xxxx LLP, Minneapolis, Minnesota, counsel to the Underwriters, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory acceptable to you, with respect to such matters as you may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such mattersthe Underwriters;
(cvii) Xxxxxx & Xxxxxx L.L.P., counsel for the Company, shall have furnished to you their written opinionA certificate, dated such Time the Closing Date, signed by the Chairman of Delivery, in form and substance satisfactory to youthe District, to the effect set forth on Annex II.
that (dA) Xxxxxxxx X. Xxxxx, General Counsel and Corporate Secretary of the Company, shall have furnished to you his written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex III.
(e) Xxxx Xxxxxxxxxx & Xxxxxxxxx LLP, special Indiana counsel for the Company, shall have furnished to you their written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex IV.
(f) Xxxxxx LLP, counsel for each of the Selling Stockholders, as indicated in Schedule IIA hereto, shall have furnished to you their written opinion with respect to each of the Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex V.
(g) Such local counsel as you shall reasonably require shall have furnished to you their written opinion with respect to each of the foreign Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex VI.
(h) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, UHY, LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, Flackman Xxxxxxx & Xxxxxx, P.A. shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) Neither the Company nor the Subsidiaries shall have sustained since the date of the latest audited financial statements included in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, other than as set forth or contemplated in the Pricing Prospectus and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or the Subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and the Subsidiaries, other than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Pricing Prospectus;
(k) On or after the Applicable Time, there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the NYSE; (ii) a suspension or material limitation in trading in the Company’s securities on the NYSE; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Texas State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus;
(l) The Shares to be sold at such Time of Delivery shall have been duly admitted for trading and quotation on the NYSE;
(m) The Company shall have obtained and delivered to the Underwriters executed copies of a lock-up agreement from each of its directors and executive officers, the Selling Stockholders and each other stockholder identified on Schedule IV hereto, in the form attached as Annex I hereto;
(n) The Company shall have complied with the provisions of Section 5(c) hereof with respect to the furnishing of prospectuses on the New York Business Day next succeeding the date of this Agreement; and
(o) The Company and the Selling Stockholders shall have furnished or caused to be furnished to you at such Time of Delivery certificates of officers of the Company and of the Selling Stockholders, respectively, satisfactory to you as to the accuracy of the representations and warranties of the Company District set forth herein are true and the Selling Stockholders, respectively, herein at and correct as of such Time the Closing Date with the same effect as if made on the date of Delivery, as Closing; (B) no event affecting the District has occurred since the date of the Official Statement that should be disclosed in the Official Statement for the purposes for which it is to be used or that it is necessary to disclose therein in order to make the statements and information therein not misleading in any material respect; (C) to the performance best knowledge of such officer, there is no action, suit, proceeding or investigation at law or in equity before or by any court, public body or board pending or threatened that seeks to restrain or enjoin the Company issuance or sale of the Bonds, or in any way contesting the validity of or the power of the District to authorize the issuance of the Bonds, or that seeks to restrain or enjoin the execution and delivery of documents in connection therewith, or contest the Selling Stockholders existence or power of the District; (D) the District has complied with all of their respective obligations hereunder the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date; and (E) the Preliminary Official Statement is, and as of its date was, "deemed final" by the District for purposes of Rule 15c2-12 except for information permitted to be omitted by such Time Rule 15c2-12.
(viii) A certificate of Deliveryan authorized officer of the District, pursuant to Section 148 of the Internal Revenue Code of 1986, as amended, and the Company applicable regulations thereunder, setting forth the expectations of the District on the date of authentication and delivery of the Bonds as to future events, and such certification shall have furnished set forth the facts and estimates on which such expectations are based and shall state that to the best of the knowledge and belief of such officer of the District, the District’s expectations are reasonable;
(ix) Such additional legal opinions, certificates, instruments and other documents as the Underwriters may reasonably request to evidence the truth and accuracy, as of the date hereof and as of the Closing Date, of the District’s representation and warranties contained herein, and of the statements and information contained in the Official Statement and the due performance or caused satisfaction by the District on or prior to the Closing Date of all respective agreements then to be furnished certificates as performed and conditions then to be satisfied by it; and
(x) Evidence satisfactory to the matters set forth Underwriters that the Bonds have received ratings of “[Aaa]” from Xxxxx’x Investors Service, Inc. and “[AAA]” from Standard & Poor’s Public Finance Ratings and that such ratings are in subsections (a) of this Section effect on the Closing Date. All such opinions, certificates, letters and as to such other matters as you may reasonably request.
(p) The Company shall have furnished or caused to documents will be furnished to you at such Time of Delivery a certificate of the Executive Vice President, Chief Financial Officer and Treasurer to the effect that:
(i) He is familiar in compliance with the internal accounting records of the Company.
(ii) He has reviewed the “Recent Developments” section contained in both the Preliminary Prospectus and the Prospectus. The information presented in such Recent Developments section (A) has been prepared in good faith and based upon assumptions that he believes provisions hereof only if they are reasonable and consistent with the operations of the Company and (B) is a fair estimate in all material respects satisfactory to us, as to which we shall act reasonably. If any condition of our obligation hereunder to be satisfied prior to the Closing Date is not so satisfied, this Agreement may be terminated by us by notice in writing or by telegram to the District. We may waive in writing compliance by the District with any one or more of the Company’s total revenues and net income foregoing conditions or extend the time for the three months ended June 30, 2011 and has been derived from the Company’s accounting and/or financial recordstheir performance.
Appears in 1 contract
Sources: Bond Purchase Agreement
Conditions of Underwriters’ Obligations. The several obligations of the Underwriters hereunder, as to purchase and pay for the Offered Securities hereunder are subject to the Shares to be delivered at each Time of Delivery, shall be subject, in their discretion, to the condition that all representations and warranties and other statements of the Company and of the Selling Stockholders herein are, at and as of such Time of Delivery, true and correct, the condition that the Company and the Selling Stockholders shall have performed all of its and their obligations hereunder theretofore to be performed, and the following additional conditions:
(a) The Prospectus That, at the Closing Date, the Company shall have been filed furnished to the Managers (i) an opinion of counsel of X. Xxxxx Xxxxxxxxx or another attorney authorized as legal representative of the Company, addressed to the Managers and dated the Closing Date, in substantially the form previously approved by the Managers and (ii) an opinion of Xxxxx Xxxx LLP or other special counsel addressed to the Managers and dated the Closing Date, in substantially the form previously approved by the Managers.
(b) That, at the Closing Date, the Company shall have furnished an opinion of XXXXXXX X. XXXXXXXX or another attorney competent to opine on regulatory matters and authorized to act as legal representative of the Company, addressed to the Managers and dated the Closing Date, in substantially the form previously approved by the Managers.
(c) That, at the Closing Date, the Managers shall have received an opinion of counsel for the Underwriters, addressed to the Managers and dated the Closing Date, in a form reasonably acceptable to them.
(d) That the representations and warranties of the Company in this Underwriting Agreement are true and correct in all material respects on the Closing Date with the Commission pursuant to Rule 424(b) under same effect as if made on the Act within Closing Date and the applicable time period prescribed for such filing by the rules and regulations under the Act and Company shall have complied in accordance with Section 5(a) hereof; all material required respects with all the agreements and satisfied in all material respects all the conditions on its part to be filed by performed or satisfied at or prior to the Company pursuant to Rule 433(dClosing Date.
(e) under the Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433 under the Act; if the Company has elected to rely upon Rule 462(b) under the Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m., Washington, D.C. time, on the date of this Agreement; That no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have has been issued and no proceeding proceedings for that purpose shall have been initiated or threatened by the Commission; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction;
(b) Xxxxx Xxxxx L.L.P., counsel for the Underwriters, shall have furnished to you such written opinion or opinions, dated such Time of Delivery, in form and substance reasonably satisfactory to you, with respect to such matters as you may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;
(c) Xxxxxx & Xxxxxx L.L.P., counsel for the Company, shall have furnished to you their written opinion, dated such Time of Delivery, in form and substance satisfactory to youinstituted or, to the effect set forth on Annex II.
(d) Xxxxxxxx X. XxxxxCompany's knowledge, General Counsel and Corporate Secretary of the Company, shall have furnished to you his written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex III.
(e) Xxxx Xxxxxxxxxx & Xxxxxxxxx LLP, special Indiana counsel for the Company, shall have furnished to you their written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex IVthreatened.
(f) Xxxxxx LLPThat subsequent to the execution and delivery of this Underwriting Agreement and prior to the Closing Date, counsel for each there shall not have occurred any downgrading, nor shall any notice have been given to the Company of (A) any intended or potential downgrading or (B) any review or possible change that does not indicate the direction of a possible change, in the rating accorded any of the Selling StockholdersCompany's securities by either of Standard & Poor's Ratings Group or Xxxxx'x Investors Service, as indicated in Schedule IIA hereto, shall have furnished to you their written opinion with respect to each of the Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex V.Inc.
(g) Such local counsel as you shall reasonably require shall have furnished to you their written opinion with respect to each Since the date of the foreign Selling Stockholdersmost recent financial statements included in the Prospectus, dated there has been no Material Adverse Change, whether or not arising from transactions in the First Time ordinary course of Deliverybusiness, in form and substance satisfactory to you, to the effect except as set forth in Annex VIor contemplated in the Prospectus.
(h) On the date of the Prospectus at a time prior to the execution of this AgreementThat, at 9:30 a.m.the Closing Date, New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, UHY, LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, Flackman Xxxxxxx & Xxxxxx, P.A. shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) Neither the Company nor the Subsidiaries shall have sustained since the date of the latest audited financial statements included in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, other than as set forth or contemplated in the Pricing Prospectus and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been (i) any change or decrease specified in the capital stock letter or long-term debt letters referred to in paragraph (j) of the Company this Section 5 or the Subsidiaries or (ii) any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity business or results of operations properties of the Company and the Subsidiaries, other than as set forth or contemplated in the Pricing Prospectus, Subsidiaries the effect of which, in any such case described referred to in clause (i) or (ii)) above, is is, in the judgment of the Representatives Managers, so material and adverse as to make it impracticable impractical or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on Securities as contemplated by the terms Registration Statement and in the manner contemplated in the Pricing Prospectus;.
(k) On or after the Applicable Time, there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on That, at the NYSE; (ii) a suspension or material limitation in trading in the Company’s securities on the NYSE; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Texas State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financialClosing Date, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus;
(l) The Shares to be sold at such Time of Delivery shall have been duly admitted for trading and quotation on the NYSE;
(m) The Company shall have obtained and delivered to the Underwriters executed copies of a lock-up agreement from each of its directors and executive officers, the Selling Stockholders and each other stockholder identified on Schedule IV hereto, in the form attached as Annex I hereto;
(n) The Company shall have complied with the provisions of Section 5(c) hereof with respect to the furnishing of prospectuses on the New York Business Day next succeeding the date of this Agreement; and
(o) The Company and the Selling Stockholders shall have furnished or caused to be furnished to you at such Time of Delivery certificates of officers of the Company and of the Selling Stockholders, respectively, satisfactory to you as to the accuracy of the representations and warranties of the Company and the Selling Stockholders, respectively, herein at and as of such Time of Delivery, as to the performance by the Company and the Selling Stockholders of all of their respective obligations hereunder to be performed at or prior to such Time of Delivery, and the Company shall have furnished or caused to be furnished certificates as to the matters set forth Managers a certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the Company, each in subsections his official capacity as an officer of the Company and not as an individual, dated the Closing Date, to the effect of subparagraphs (ad) through (g) of this Section and as to such other matters as you may reasonably request5.
(pj) The Company That, at the date on which the Terms Agreement is executed and delivered and at the Closing Date, Xxxxxx Xxxxxxxx LLP, the Company's independent public accountants shall have furnished to the Managers a letter or caused to be furnished to you at such Time of Delivery a certificate letters, dated respectively as of the Executive Vice Presidentdate of the applicable Terms Agreement (unless otherwise specified therein) and the Closing Date, Chief Financial Officer in substantially the form previously approved the Managers and Treasurer to the effect that:
(i) He is familiar with the internal accounting records of the Company.
(iik) He has reviewed That the “Recent Developments” section contained in both Company shall have delivered to the Preliminary Prospectus Managers and its counsel such documents as they may reasonably request relating to the Prospectus. The information presented in such Recent Developments section (A) has been prepared in good faith issuance and based upon assumptions that he believes are reasonable and consistent with the operations sale of the Company and (B) is a fair estimate Offered Securities or otherwise related to the matters contemplated hereby. If any of the conditions specified in this Section 5 shall not have been fulfilled in all material respects when and as provided in this Underwriting Agreement, or if any of the Company’s total revenues opinions and net income for certificates mentioned above or elsewhere in this Underwriting Agreement shall not be in all material respects reasonably satisfactory in form and substance to the three months ended June 30Managers and its counsel, 2011 this Underwriting Agreement and has been derived from all obligations of the Company’s accounting and/or financial recordsUnderwriters hereunder may be canceled at, or at any time prior to, each Closing Date by the Managers. Notice of such cancelation shall be given to the Company in writing or by telephone or telegraph confirmed in writing.
Appears in 1 contract
Conditions of Underwriters’ Obligations. The obligations of the --------------------------------------- several Underwriters hereunder, as hereunder are subject to the Shares accuracy of the representations and warranties of the Offerors contained in Section 1 hereof and the accuracy of the statements made in any certificate furnished by either Offeror pursuant to be delivered at each Time of Delivery, shall be subject, in their discretionthe provisions hereof, to the condition that performance and observance by the Offerors of all representations covenants and warranties and other statements of the Company and of the Selling Stockholders agreements herein are, at and as of such Time of Delivery, true and correct, the condition that the Company and the Selling Stockholders shall have performed all of contained on its and their obligations hereunder theretofore part to be performed, performed and observed and to the following additional conditionsconditions precedent:
(a) The Prospectus At the Closing Time, no stop order suspending the effectiveness of the Registration Statement shall have been filed with issued and no proceedings for that purpose shall be instituted or threatened or, to the knowledge of the Offerors or the Underwriters, contemplated by the Commission; no stop order suspending the sale of the Securities in any jurisdiction designated by the Representatives pursuant to Section 4(f) shall have been issued and no proceedings for that purpose shall have been instituted or threatened or, to the knowledge of the Offerors or the Underwriters, shall be contemplated; any request of the Commission for additional information (to be included in the Registration Statement or Prospectus or otherwise) shall have been complied with to the satisfaction of the Representatives. The supplement to the Prospectus referred to in Section 4(g) of this Agreement shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period, and prior to Closing Time the Offerors shall have provided evidence satisfactory to the Representatives of such timely filing.
(b) The Underwriters shall have received an opinion from Xxxxxx X. Xxxxxx, Esq., Associate General Counsel for Occidental, dated as of the Closing Time and in form and substance satisfactory to counsel for the Underwriters, to the effect that:
(i) Occidental has been duly incorporated and is validly existing in good standing under the Act within laws of the applicable time period prescribed for such filing State of Delaware. Each Principal Domestic Subsidiary is validly existing in good standing under the laws of its state of incorporation.
(ii) Occidental has full corporate power and corporate authority to enter into and perform its obligations under this Agreement, the Declaration, the Indenture and each of the Guarantee Agreements, to borrow money as contemplated in this Agreement and the Indenture, and to issue, sell and deliver the Subordinated Debt Securities, and to purchase, own and hold the Common Securities issued by the rules Trust.
(iii) This Agreement, the Guarantee Agreements and regulations under the Act Subordinated Debt Securities have been duly authorized, executed and delivered by Occidental.
(iv) The Declaration has been duly authorized, executed and delivered by the Guarantor and each of the Regular Trustees.
(v) The Indenture has been duly authorized, executed and delivered by Occidental and (assuming the due authorization, execution and delivery of the Indenture by the Debt Trustee) is a valid and binding agreement of Occidental enforceable against Occidental in accordance with Section 5(aits terms, except that such enforceability may be limited by (A) hereof; all material bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (B) general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
(vi) No consent or approval of any United States governmental authority or other United States person or United States entity is required in connection with the issuance or sale of the Securities other than registration thereof under the 1933 Act, qualification of the Indenture under the 1939 Act, and such registrations or qualifications as may be necessary under the securities or Blue Sky laws of the various United States jurisdictions in which the Securities are to be filed offered or sold.
(vii) The Subordinated Debt Securities have been duly authorized by Occidental and, when executed by Occidental and authenticated by the Company pursuant to Rule 433(d) under the Act shall have been filed Debt Trustee in accordance with the Commission within terms of the applicable time period prescribed Indenture (assuming the due authorization, execution and delivery of the Indenture by the Debt Trustee) and issued to and paid for by the Trust, will be entitled to the benefits of the Indenture and will be valid and binding obligations of Occidental enforceable against Occidental in accordance with their terms, except that such filing enforceability may be limited by Rule 433 under the Act; if the Company has elected (A) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to rely upon Rule 462(bcreditors' rights generally and (B) under the Actgeneral principles of equity (regardless of whether such enforcement is sought in a proceeding in equity or at law).
(viii) The Registration Statement, the including any Rule 462(b) Registration Statement shall have Statement, has become effective by 10:00 p.m.under the 1933 Act and the Indenture has been qualified under the 1939 Act, Washingtonand, D.C. timeto the best of such counsel's knowledge, on the date of this Agreement; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have Rule 462(b) Registration Statement has been issued and no proceeding proceedings for that purpose shall have been initiated instituted or threatened are pending or contemplated.
(ix) The execution, delivery and performance of this Agreement, the Declaration, the Preferred Securities, the Common Securities, the Indenture, the Subordinated Debt Securities, the Guarantee Agreements and the Guarantees and the consummation of the transactions contemplated herein and therein and compliance by the Commission; Offerors with their respective obligations hereunder and thereunder will not conflict with or constitute a breach of or a default (with the passage of time or otherwise) under (A) the Restated Certificate of Incorporation or Bylaws of Occidental, in each case, as amended, or the Declaration or the Certificate of Trust, (B) any statute, law or regulation to which Occidental or any Principal Domestic Subsidiary or any of their respective properties may be subject or (C) any judgment, decree or order, known to such counsel, after reasonable inquiry, of any court or governmental agency or authority entered in any proceeding to which Occidental or any Principal Domestic Subsidiary was or is now a party or by which it is bound, except that such counsel may state that the opinion set forth in clause (B) of this paragraph (ix) is limited to those statutes, laws or regulations in effect on the date of such opinion which, in such counsel's experience, are normally applicable to transactions of the type contemplated by this Agreement and that such counsel expresses no stop order suspending opinion as to the securities or preventing Blue Sky laws of the use various jurisdictions in which the Securities are to be offered.
(x) The Registration Statement and the Rule 462(b) Registration Statement as of their respective effective dates, and the Prospectus, as of its date, including each Incorporated Document when such Incorporated Document was filed or became effective, or if any such Incorporated Document was amended, when such amendment was filed or became effective, appeared on their face to be appropriately responsive in all material respects to the applicable requirements of the 1933 Act or the 1934 Act, as the case may be, except that in each case such counsel need not express an opinion as to the financial statements and schedules and other financial data included or incorporated by reference therein or as to the Form T-1.
(xi) The statements in the Prospectus under the captions "Certain Terms of the Subordinated Notes," "Description of Senior Debt Securities," "Description of Subordinated Debt Securities," "Description of Preferred Securities Guarantees" and "Relationship Among Preferred Securities, Preferred Securities Guarantees and Subordinated Debt Securities Held by Each Trust," insofar as they purport to summarize certain provisions of documents specifically referred to therein, are in all material respects accurate summaries of such provisions.
(xii) Except as set forth in the Prospectus (including the Incorporated Documents), there is not pending or, to the knowledge of such counsel, after reasonable inquiry, threatened any action, suit or proceeding against Occidental or any of its subsidiaries before or by any court or governmental agency or body, which is likely (to the extent not covered by insurance) to have a material adverse effect on the consolidated financial condition of Occidental and its subsidiaries, taken as a whole.
(xiii) All of the issued and outstanding Common Securities of the Trust are directly owned of record by the Guarantor free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity, except for the restrictions on transfer set forth in the Declaration and except that such counsel may state that in rendering the opinion set forth in this paragraph (xiii) regarding security interests, mortgages, pledges, liens, encumbrances, claims and equities on the Common Securities of the Trust such counsel has not undertaken any independent investigation of the public record.
(xiv) To the best of such counsel's knowledge, after reasonable inquiry, there is no contract or document of a character required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that is not described or filed as required.
(xv) To the best of such counsel's knowledge, after reasonable inquiry, Occidental is not in violation of its Restated Certificate of Incorporation or Bylaws, in each case, as amended.
(xvi) To the best of such counsel's knowledge, after reasonable inquiry, the execution and delivery of this Agreement and the Indenture by Occidental, the issuance and sale of the Subordinated Debt Securities and the performance by Occidental of its obligations under this Agreement and the Indenture will not conflict with or constitute a breach of or a default (with the passage of time or otherwise) under any Issuer Free Writing Prospectus shall agreement or instrument that is, individually or in the aggregate, material to Occidental and its subsidiaries, taken as a whole, and to which Occidental is a party or by which it is bound.
(xvii) The Declaration and the Preferred Securities Guarantee have been initiated or threatened duly qualified under the 0000 Xxx.
(xviii) The Preferred Securities Guarantee Agreement has been duly authorized, executed and delivered by the Commission; Guarantor and, assuming due authorization, execution and all requests for additional information on the part delivery by The Bank of New York, constitutes a valid and binding obligation of the Commission shall have been complied Guarantor, enforceable against the Guarantor in accordance with its terms, except as may be subject to your reasonable satisfaction;
or limited by (a) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect affecting creditors' rights generally, (b) Xxxxx Xxxxx L.L.P.the effect of general principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing and the possible unavailability of specific performance or injunctive relief, regardless of whether considered in a proceeding in equity or at law, (c) requirements that a claim with respect to the Preferred Securities Guarantee denominated other than in United States dollars (or a judgment denominated other than in United States dollars in respect of such claim) be converted into United States dollars at a rate of exchange prevailing on a date determined pursuant to applicable law, (d) governmental authority to limit, delay or prohibit the making of payments outside the United States or in a foreign currency, composite currency or currency unit, and (e) the effect of general rules of contract law that limit the enforceability of provisions requiring indemnification of a party for liability for its own action or inaction to the extent the action or inaction involves gross negligence, recklessness, willful misconduct or unlawful conduct. In rendering such opinion such counsel may state that with respect to certain matters he has relied upon advice of other counsel employed by Occidental who are more familiar with such matters. In addition, such counsel shall state that he has participated in conferences with officers and other representatives of the Offerors, outside counsel for the Offerors, representatives of the independent public accountants for Occidental, representatives of the Underwriters and counsel for the Underwriters, shall have furnished at which conferences the contents of the Registration Statement, the Rule 462(b) Registration Statement and Prospectus and related matters were discussed and, although he is not passing upon, and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Rule 462(b) Registration Statement or the Prospectus (other than as set forth in paragraph (xi) above) and has not made any independent check or verification thereof, on the basis of the foregoing, nothing has come to you such written opinion counsel's attention that leads him to believe that either the Registration Statement (including the Incorporated Documents) at the time such Registration Statement became effective, (or opinionsif an amendment to the Registration Statement or an Annual Report on Form 10-K has been filed by Occidental with the Commission subsequent to the effectiveness of the Registration Statement and prior to the date of such statement, dated then at the time such amendment became effective or at the time of the most recent such filing (to the extent deemed to be incorporated by reference therein), as the case may be) or the Rule 462(b) Registration Statement at the time such Rule 462(b) Registration Statement became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus (including the Incorporated Documents) as of its date and as of the Closing Time contained or contains an untrue statement of Deliverya material fact or omitted or omits to state a material fact necessary to make the statements therein, in form and substance reasonably satisfactory to youthe light of the circumstances under which they were made, not misleading, except that such counsel need express no opinion with respect to such matters as you may reasonably requestthe financial statements, schedules and such counsel shall have received such papers and information as they may reasonably request other financial data included or incorporated by reference in the Registration Statement, the Rule 462(b) Registration Statement or Prospectus or with respect to enable them to pass upon such matters;the Form T-1.
(c) Xxxxxx & Xxxxxx L.L.P., counsel for the Company, The Underwriters shall have furnished to you their written opinionreceived an opinion from Skadden, Arps, Slate, Xxxxxxx and Xxxx LLP, dated such as of the Closing Time of Delivery, and in form and substance satisfactory to youcounsel for the Underwriters, to covering the effect matters set forth on Annex II.in Exhibit A.
(d) Xxxxxxxx X. The Underwriters shall have received an opinion from Xxxxx, General Counsel and Corporate Secretary Xxxxxx & Xxxxxx llp, dated as of the Company, shall have furnished to you his written opinion, dated such Closing Time of Delivery, and in form and substance satisfactory to youcounsel for the Underwriters, to covering the effect matters set forth on Annex III.in Exhibit B.
(e) Xxxx Xxxxxxxxxx & Xxxxxxxxx LLP, special Indiana counsel for the Company, The Underwriters shall have furnished to you their written opinionreceived an opinion from Xxxxxxxx, Xxxxxx & Finger, P.A., dated such as of the Closing Time of Delivery, and in form and substance satisfactory to youcounsel for the Underwriters, to covering the effect matters set forth on Annex IV.in Exhibit C.
(f) Xxxxxx LLPThe Underwriters shall have received an opinion from Xxxxx & Xxxx llp, counsel for each to the Underwriters, dated as of the Selling Stockholders, as indicated in Schedule IIA hereto, shall have furnished to you their written opinion with respect to each of the Selling Stockholders, dated the First Closing Time of Delivery, and in form and substance satisfactory to you, to the effect set forth in Annex V.
(g) Such local counsel as you shall reasonably require shall have furnished to you their written opinion with respect to each of the foreign Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex VIUnderwriters.
(h) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, UHY, LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, Flackman Xxxxxxx & Xxxxxx, P.A. shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) Neither the Company nor the Subsidiaries shall have sustained since the date of the latest audited financial statements included in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, other than as set forth or contemplated in the Pricing Prospectus and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or the Subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and the Subsidiaries, other than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Pricing Prospectus;
(k) On or after the Applicable Time, there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the NYSE; (ii) a suspension or material limitation in trading in the Company’s securities on the NYSE; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Texas State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus;
(l) The Shares to be sold at such Time of Delivery shall have been duly admitted for trading and quotation on the NYSE;
(m) The Company shall have obtained and delivered to the Underwriters executed copies of a lock-up agreement from each of its directors and executive officers, the Selling Stockholders and each other stockholder identified on Schedule IV hereto, in the form attached as Annex I hereto;
(n) The Company shall have complied with the provisions of Section 5(c) hereof with respect to the furnishing of prospectuses on the New York Business Day next succeeding the date of this Agreement; and
(o) The Company and the Selling Stockholders shall have furnished or caused to be furnished to you at such Time of Delivery certificates of officers of the Company and of the Selling Stockholders, respectively, satisfactory to you as to the accuracy of the representations and warranties of the Company and the Selling Stockholders, respectively, herein at and as of such Time of Delivery, as to the performance by the Company and the Selling Stockholders of all of their respective obligations hereunder to be performed at or prior to such Time of Delivery, and the Company shall have furnished or caused to be furnished certificates as to the matters set forth in subsections (a) of this Section and as to such other matters as you may reasonably request.
(p) The Company shall have furnished or caused to be furnished to you at such Time of Delivery a certificate of the Executive Vice President, Chief Financial Officer and Treasurer to the effect that:
(i) He is familiar with the internal accounting records of the Company.
(ii) He has reviewed the “Recent Developments” section contained in both the Preliminary Prospectus and the Prospectus. The information presented in such Recent Developments section (A) has been prepared in good faith and based upon assumptions that he believes are reasonable and consistent with the operations of the Company and (B) is a fair estimate in all material respects of the Company’s total revenues and net income for the three months ended June 30, 2011 and has been derived from the Company’s accounting and/or financial records.
Appears in 1 contract
Sources: Underwriting Agreement (Occidental Petroleum Corp /De/)
Conditions of Underwriters’ Obligations. The obligations of the Underwriters hereunder, as to purchase and pay for the Preferred Securities that they have respectively agreed to purchase pursuant to this Agreement are subject to the Shares accuracy of the representations and warranties of the Offerors contained herein or in certificates of the officers or trustees of the Offerors or any subsidiary delivered pursuant to be delivered at each Time of Delivery, shall be subject, in their discretionthe provisions hereof, to the condition that all representations and warranties and other statements performance by the Offerors of the Company and of the Selling Stockholders herein are, at and as of such Time of Delivery, true and correct, the condition that the Company and the Selling Stockholders shall have performed all of its and their obligations hereunder theretofore and to be performed, and the following additional further conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(a) hereof; all material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433 under the Act; if the Company has elected to rely upon Rule 462(b) under the Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m., Washington, D.C. time, not later than 5:30 P.M. on the date of this AgreementAgreement or, with your consent, at a later time and date not later, however, than 5:30 P.M. on the first business day following the date hereof, or at such later time or on such later date as you may agree to in writing; at the Closing Time no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued under the 1933 Act and no proceeding proceedings for that purpose shall have been initiated instituted or threatened shall be pending or, to the Underwriters' knowledge or the knowledge of the Offerors shall be contemplated by the Commission; no stop order suspending or preventing the use of the Prospectus or , and any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information request on the part of the Commission for additional information shall have been complied with to your reasonable satisfaction;the satisfaction of counsel for the Underwriters. If the Offerors have elected to rely upon Rule 430A, a prospectus containing the Rule 430A Information shall have been filed with the Commission in accordance with Rule 424(b) (or a post-effective amendment providing such information shall have been filed and declared effective in accordance with the requirements of Rule 430A).
(b) Xxxxx Xxxxx L.L.P.At the Closing Time, the Underwriters shall have received:
(i) The favorable opinion, dated as of Closing Time, of Stuzin and Camner, P.A., counsel for the Underwriters, shall have furnished to you such written opinion or opinions, dated such Time of DeliveryCompany, in form and substance reasonably satisfactory to youcounsel for the Underwriters, with respect substantially in the form set forth in Exhibit C.
(ii) The favorable opinion, dated as of Closing Time, of Richards, Layton & Finger, special Delaware counsel for the Offerors, xx xxxx xnd substance satisfactory to counsel for the Underwriters, substantially in the form set forth in Exhibit D.
(iii) The favorable opinion, dated as of Closing Time, of Greenberg, Traurig, Hoffman, Lipoff, Rosen & Quentel, P.A., counsel for the Underwriters, in form anx xxxstance satisfactory to the Underwriters.
(iv) The favorable opinion, dated as of Closing Time, of Kronish, Lieb, Weiner & Hellman LLP, special tax counsel for the Offerors, in form and xxxxxxxce satisfactory to the Underwriters. In giving such matters as you may reasonably requestopinion, and such counsel may rely, as to all matters governed by the laws of jurisdictions other than the federal law of the United States, upon opinions of other counsel, who shall be counsel satisfactory to counsel for the Underwriters (the Underwriters agree and acknowledge that Stuzin and Camner, P.A. and Greenberg, Traurig, Hoffman, Lipoff, Rosen & Quentel, P.A. will rely on the opinion of Richards, Layton & Finxxx xith xxxxxxt to matters of Delaware law), in wxxxx xxxx xxx xxinion shall state that counsel believes that you and your counsel are entitled to so rely. Such counsel may also state that, insofar as such opinion involves factual matters, they have received such papers relied, to the extent they deem proper, upon certificates of officers of the Company, the Bank and information as they may reasonably request to enable them to pass upon such matters;the Trust and certificates of public officials.
(c) Xxxxxx & Xxxxxx L.L.P.At the Closing Time and again at the Option Closing Date, counsel for the Company, shall have furnished to you their written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex II.
(di) Xxxxxxxx X. Xxxxx, General Counsel and Corporate Secretary of the Company, shall have furnished to you his written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex III.
(e) Xxxx Xxxxxxxxxx & Xxxxxxxxx LLP, special Indiana counsel for the Company, shall have furnished to you their written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex IV.
(f) Xxxxxx LLP, counsel for each of the Selling Stockholders, as indicated in Schedule IIA hereto, shall have furnished to you their written opinion with respect to each of the Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex V.
(g) Such local counsel as you shall reasonably require shall have furnished to you their written opinion with respect to each of the foreign Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex VI.
(h) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent and the Prospectus, as they may then be amended or supplemented, shall contain all statements that are required to be stated therein under the 1933 Act and the 1933 Act Regulations and in all material respects shall conform to the date requirements of this Agreement the 1933 Act and also at each Time of Deliverythe 1933 Act Regulations, UHY, LLP the Offerors shall have furnished complied in all material respects with Rule 430A (if they shall have elected to you a letter or letters, dated the respective dates of delivery thereof, in form rely thereon) and substance satisfactory to you;
(i) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to neither the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, Flackman Xxxxxxx & Xxxxxx, P.A. shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) Neither the Company nor the Subsidiaries Prospectus, as they may then be amended or supplemented, shall have sustained since contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the date of the latest audited financial statements included in the Pricing Prospectus any loss or interference with its business from firetherein not misleading, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, other than as set forth or contemplated in the Pricing Prospectus and (ii) there shall not have been, since the respective dates as of which information is given in the Pricing Prospectus there shall not have been Registration Statement, any material adverse change in the capital stock condition (financial or long-term debt of the Company or the Subsidiaries or any changeotherwise), or any development involving a prospective changeearnings, in or affecting the general business affairs, management, financial position, stockholders’ equity assets or results of operations business prospects of the Company and its subsidiaries, considered as one enterprise, whether or not arising in the Subsidiariesordinary course of business, (iii) no action, suit or proceeding at law or in equity shall be pending or, to the knowledge of the Offerors, threatened against the Company or any subsidiary or the Trust that would be required to be set forth in the Prospectus other than as set forth therein and no proceedings shall be pending or, to the knowledge of the Offerors, threatened against the Offerors or any subsidiary before or by any federal, state or other commission, board or administrative agency wherein an unfavorable decision, ruling or finding could reasonably be expected to materially and adversely affect the condition (financial or otherwise), earnings, business affairs, assets or business prospects of the Company and its subsidiaries, considered as one enterprise, other than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Pricing Prospectus;
(k) On or after the Applicable Time, there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the NYSE; (ii) a suspension or material limitation in trading in the Company’s securities on the NYSE; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Texas State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) each of the outbreak Offerors shall have complied with all agreements and satisfied all conditions on its part to be performed or escalation of hostilities involving satisfied at or prior to the United States or the declaration by the United States of a national emergency or war or Closing Time, (v) the occurrence other representations and warranties of the Offerors set forth in Section l(a) shall be accurate in all material respects as though expressly made at and as of the Closing Time, and (vi) no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceeding for that purpose been initiated or to the best knowledge of the Offerors threatened by the Commission. At the Closing Time, the Underwriters shall have received a certificate of the Chairman or the President, and the Chief Financial Officer or Controller, of the Company, dated as of the Closing Time, to such effect.
(d) At the time that this Agreement is executed by the Company, you shall have received from Price Waterhouse LLP a letter or letters, dated such date, in form and substance satisfactory to you, confirming that they are independent certified public accountants with respect to the Company (and Suncoast, as applicable) within the meaning of the 1933 Act and the published 1933 Act Regulations, and stating in effect that: With respect to the Company:
(i) in their opinion, the consolidated financial statements as of September 30, 1996 and 1995, and for each of the years in the three year period ended September 30, 1996 and the related financial statement schedules, if any, included or incorporated by reference in the Registration Statement and the Prospectus and covered by their opinions included therein comply as to form in all material respects with the applicable accounting requirements of the 1933 Act and the published 1933 Act Regulations;
(ii) on the basis of a reading of the minutes of all meetings of the shareholders of the Company and the Bank, of the Board of Directors of the Company and the Bank and of the Audit and Executive Committees of the Board of Directors of the Bank since September 30, 1996, inquiries of certain officials of the Company and its subsidiaries responsible for financial and accounting matters, and such other inquiries and procedures as may be specified in such letter, nothing came to their attention that caused them to believe that:
(A) at a specified date not more than three days prior to the date of this Agreement, there was any other calamity increase in notes or crisis subordinated debentures payable, real estate owned, or allowance for loan losses of the Company and its consolidated subsidiaries or any change decrease in financialtotal assets, political total deposits or economic conditions stockholders' equity of the Company and its consolidated subsidiaries or any increase in the United States number of outstanding shares of capital stock of the Company and its consolidated subsidiaries, in each case as compared with amounts shown in the financial statements at September 30, 1996 included in the Registration Statement; or
(B) for the period from March 31, 1997 to a specified date not more than three days prior to the date of this Agreement, there was any decrease in consolidated net interest income, non-interest income or elsewherenet income or the total or fully diluted per share amounts of net income or any increase in the consolidated provision for loan losses or non-interest expense, if in each case as compared with the effect of any such event specified comparable period in the preceding year.
(iii) in addition to the procedures referred to in clause (ii) above, they have performed other specified procedures, not constituting an audit, with respect to certain amounts, percentages, numerical data and financial information appearing in the Registration Statement (including the Selected Consolidated Financial Data) (having compared such items with, and have found such items to be in agreement with, the financial statements of the Company or general accounting records of the Company, as applicable, which are subject to the Company's internal accounting controls or other data and schedules prepared by the Company from such records).
(iv) or on the basis of a review of schedules provided to them by the Company, nothing came to their attention that caused them to believe that the pro forma information, set forth in the Prospectus under the headings "Capitalization" on page _____ had not been correctly calculated on the basis described therein. With respect to Suncoast:
(vi) in their opinion, the judgment consolidated financial statements as of June 30, 1996 and 1995, and for each of the Representatives makes it impracticable years in the three year period ended June 30, 1996 and the related financial statement schedules, if any, included or inadvisable incorporated by reference in the Registration Statement and the Prospectus and covered by their opinions included therein comply as to proceed form in all material respects with the public offering or the delivery applicable accounting requirements of the Shares being delivered at such Time of Delivery on 1933 Act and the terms and in the manner contemplated in the Prospectuspublished 1933 Act Regulations;
(le) The Shares At the Closing Time, the Underwriters shall have received from Price Waterhouse LLP letters, in form and substance satisfactory to the Underwriters and dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter(s) furnished pursuant to Section 5(d), except that the inquiries specified in Section 5(d) shall be sold at such Time of Delivery made based upon the latest available unaudited interim consolidated financial statements and the specified date referred to shall be a date not more than two days prior to the Closing Time.
(f) At the Closing Time, counsel for the Underwriters shall have been duly admitted furnished with all such documents, certificates and opinions as they may request for trading the purpose of enabling them to pass upon the issuance and quotation on sale of the NYSE;Preferred Securities as contemplated in this Agreement and the matters referred to in Section 5(c) and in order to evidence the accuracy and completeness of any of the representations, warranties or statements of the Offerors, the performance of any of the covenants of the Offerors, or the fulfillment of any of the conditions herein contained; all proceedings taken by the Company at or prior to the Closing Time in connection with the authorization, issuance and sale of the Preferred Securities and the Junior Subordinated Debentures as contemplated in this Agreement shall be satisfactory in form and substance to the Underwriters and to counsel for the Underwriters.
(mg) Between the date of this Agreement and the Closing Time, (i) no downgrading shall have occurred in the rating accorded any securities of the Company or any deposit instruments of the Bank by any "nationally recognized statistical rating organization," as that term is defined by the Commission for purposes of Rule 436(g) (2) under the 1933 Act and (ii) no such organization shall have given any notice of any intended or potential downgrading or of any surveillance or review, with possible negative implications, of its rating of any of the Company's securities or any deposit instruments of the Bank.
(h) The Company shall have obtained and delivered paid, or made arrangements satisfactory to the Underwriters executed copies for the payment of, all such expenses as may be required by Section 4 hereof.
(i) In the event the Underwriters exercise their option provided in Section 2 hereof to purchase all or any portion of a lock-up agreement from each of its directors and executive officersthe Option Securities, the Selling Stockholders and each other stockholder identified on Schedule IV hereto, in the form attached as Annex I hereto;
(n) The Company shall have complied with the provisions of Section 5(c) hereof with respect to the furnishing of prospectuses on the New York Business Day next succeeding the date of this Agreement; and
(o) The Company and the Selling Stockholders shall have furnished or caused to be furnished to you at such Time of Delivery certificates of officers obligations of the Company and of Underwriters to purchase the Selling Stockholders, respectively, satisfactory Option Securities that it has agreed to you as purchase shall be subject to the accuracy of the representations and warranties of the Company Offerors contained herein and of the Selling Stockholders, respectively, herein at and statements in any certificates furnished by the Offerors hereunder as of such Time of DeliveryOption Closing Date (as if made on such date), as to the performance by the Company Offerors of their obligations hereunder and to the receipt by you on the Option Closing Date of:
(1) A certificate, dated the Option Closing Date, of the Chairman or the President and the Selling Stockholders Chief Financial Officer or Controller of all the Company confirming that the certificate delivered on the Closing Time pursuant to Section 5(c) hereof remains true as of their respective obligations hereunder the Option Closing Date;
(2) The favorable opinion of Stuzin and Camner, P.A., counsel for the Company, addressed to you and dated the Option Closing Date, in form satisfactory to Greenberg, Traurig, Hoffman, Lipoff, Rosen & Quentel, P.A., your counsel, relating to the Option Xxxurixxxx xxd otherwise to the same effect as the opinion required by Section 5(b) hereof;
(3) The favorable opinion of Richards, Layton & Finger, special Delaware counsel for thx Xxxxxxxx xxx xounsel for the Indenture Trustee, addressed to you and dated the Option Closing Date, in form satisfactory to Greenberg, Traurig, Hoffman, Lipoff, Rosen & Quentel, P.A., your counsel, relating to the Option Securities and otherwise to the same effect as the opinion required by Section 5(b) hereof.
(4) The favorable opinion of Greenberg, Traurig, Hoffman, Lipoff, Rosen & Quentel, P.A., dated the Option Closing Date, relaxxxx to the Option Shares and otherwise to the same effect as the opinion required by Section 5(b) hereof; and
(5) Letters from Price Waterhouse LLP addressed to the Underwriters and dated the Option Closing Date, in form and substance satisfactory to the Underwriters and substantially the same in form and substance as the letters furnished to the Underwriters pursuant to Section 5(d) hereof.
(j) The Preferred Securities, the Guarantee and the Junior Subordinated Debentures shall have been qualified or registered for sale, or subject to an available exemption from such qualification or registration, under the Blue Sky Laws of such jurisdictions as shall have been reasonably specified by the Underwriters and the offering contemplated by this Agreement shall have been cleared by the NASD. If any of the conditions specified in this Section 5 shall not have been fulfilled when and as required by this Agreement to be performed fulfilled, this Agreement may be terminated by the Underwriters on notice to the Offerors at any time at or prior to such Time of Deliverythe Closing Time, and such termination shall be without liability of any party to any other Party, except as provided in Section 4. Notwithstanding any such termination, the Company provisions of Sections 6, 7, and 9 shall have furnished or caused to be furnished certificates as to the matters set forth remain in subsections (a) of this Section and as to such other matters as you may reasonably requesteffect.
(p) The Company shall have furnished or caused to be furnished to you at such Time of Delivery a certificate of the Executive Vice President, Chief Financial Officer and Treasurer to the effect that:
(i) He is familiar with the internal accounting records of the Company.
(ii) He has reviewed the “Recent Developments” section contained in both the Preliminary Prospectus and the Prospectus. The information presented in such Recent Developments section (A) has been prepared in good faith and based upon assumptions that he believes are reasonable and consistent with the operations of the Company and (B) is a fair estimate in all material respects of the Company’s total revenues and net income for the three months ended June 30, 2011 and has been derived from the Company’s accounting and/or financial records.
Appears in 1 contract
Conditions of Underwriters’ Obligations. The obligations of the Underwriters hereunder, as to purchase and pay for the Preferred Securities that they have respectively agreed to purchase pursuant to this Agreement are subject to the Shares accuracy of the representations and warranties of the Offerors contained herein or in certificates of the officers or trustees of the Offerors or any subsidiary delivered pursuant to be delivered at each Time of Delivery, shall be subject, in their discretionthe provisions hereof, to the condition that all representations and warranties and other statements performance by the Offerors of the Company and of the Selling Stockholders herein are, at and as of such Time of Delivery, true and correct, the condition that the Company and the Selling Stockholders shall have performed all of its and their obligations hereunder theretofore and to be performed, and the following additional further conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(a) hereof; all material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433 under the Act; if the Company has elected to rely upon Rule 462(b) under the Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m., Washington, D.C. time, not later than 5:30 P.M. on the date of this AgreementAgreement or, with your consent, at a later time and date not later, however, than 5:30 P.M. on the first business day following the date hereof, or at such later time or on such later date as you may agree to in writing; at the Closing Time no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued under the 1933 Act and no proceeding proceedings for that purpose shall have been initiated instituted or threatened shall be pending or, to the Underwriters' knowledge or the knowledge of the Offerors shall be contemplated by the Commission; no stop order suspending or preventing the use of the Prospectus or , and any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information request on the part of the Commission for additional information shall have been complied with to your reasonable satisfaction;the satisfaction of counsel for the Underwriters. If the Offerors have elected to rely upon Rule 430A, a prospectus containing the Rule 430A Information shall have been filed with the Commission in accordance with Rule 424(b) (or a post-effective amendment providing such information shall have been filed and declared effective in accordance with the requirements of Rule 430A).
(b) Xxxxx Xxxxx L.L.P.At the Closing Time, the Underwriters shall have received:
(i) The favorable opinion, dated as of Closing Time, of Stuzin and Camner, P.A., counsel for the Underwriters, shall have furnished to you such written opinion or opinions, dated such Time of DeliveryCompany, in form and substance reasonably satisfactory to youcounsel for the Underwriters, with respect to such matters as you may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;substantially in the form set forth in Exhibit C.
(cii) Xxxxxx The favorable opinion, dated as of Closing Time, of Richards, Layton & Xxxxxx L.L.P.Finger, special Delaware counsel for the Offerors, xx xxxx xnd substance satisfactory to counsel for the Underwriters, substantially in the form set forth in Exhibit D.
(iii) The favorable opinion dated as of Closing Time, of Emmet, Marvin & Martin, LLP, counsel for the Company, shall have furnished to you their written opinion, dated such Time of DeliveryIndenture Trustee, in form and substance xxx subxxxxxx satisfactory to you, to the effect set forth on Annex II.
(d) Xxxxxxxx X. Xxxxx, General Counsel and Corporate Secretary of the Company, shall have furnished to you his written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex III.
(e) Xxxx Xxxxxxxxxx & Xxxxxxxxx LLP, special Indiana counsel for the CompanyUnderwriters, shall have furnished to you their written opinion, dated such Time of Delivery, substantially in the form and substance satisfactory to you, to the effect set forth on Annex IV.
(f) Xxxxxx LLP, counsel for each of the Selling Stockholders, as indicated in Schedule IIA hereto, shall have furnished to you their written opinion with respect to each of the Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex V.
(g) Such local counsel as you shall reasonably require shall have furnished to you their written opinion with respect to each of the foreign Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex VI.
(h) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, UHY, LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, Flackman Xxxxxxx & Xxxxxx, P.A. shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) Neither the Company nor the Subsidiaries shall have sustained since the date of the latest audited financial statements included in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, other than as set forth or contemplated in the Pricing Prospectus and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or the Subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and the Subsidiaries, other than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Pricing Prospectus;
(k) On or after the Applicable Time, there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the NYSE; (ii) a suspension or material limitation in trading in the Company’s securities on the NYSE; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Texas State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus;
(l) The Shares to be sold at such Time of Delivery shall have been duly admitted for trading and quotation on the NYSE;
(m) The Company shall have obtained and delivered to the Underwriters executed copies of a lock-up agreement from each of its directors and executive officers, the Selling Stockholders and each other stockholder identified on Schedule IV hereto, in the form attached as Annex I hereto;
(n) The Company shall have complied with the provisions of Section 5(c) hereof with respect to the furnishing of prospectuses on the New York Business Day next succeeding the date of this Agreement; and
(o) The Company and the Selling Stockholders shall have furnished or caused to be furnished to you at such Time of Delivery certificates of officers of the Company and of the Selling Stockholders, respectively, satisfactory to you as to the accuracy of the representations and warranties of the Company and the Selling Stockholders, respectively, herein at and as of such Time of Delivery, as to the performance by the Company and the Selling Stockholders of all of their respective obligations hereunder to be performed at or prior to such Time of Delivery, and the Company shall have furnished or caused to be furnished certificates as to the matters set forth in subsections (a) of this Section and as to such other matters as you may reasonably request.
(p) The Company shall have furnished or caused to be furnished to you at such Time of Delivery a certificate of the Executive Vice President, Chief Financial Officer and Treasurer to the effect that:
(i) He is familiar with the internal accounting records of the Company.
(ii) He has reviewed the “Recent Developments” section contained in both the Preliminary Prospectus and the Prospectus. The information presented in such Recent Developments section (A) has been prepared in good faith and based upon assumptions that he believes are reasonable and consistent with the operations of the Company and (B) is a fair estimate in all material respects of the Company’s total revenues and net income for the three months ended June 30, 2011 and has been derived from the Company’s accounting and/or financial records.Exhibit E.
Appears in 1 contract
Conditions of Underwriters’ Obligations. The obligations of the --------------------------------------- several Underwriters hereunderto purchase and pay for the Firm Shares and the Additional Shares, as to the Shares to be delivered at each Time of Deliveryprovided herein, shall be subject, in their discretion, to the condition that all representations and warranties and other statements of the Company and of the Selling Stockholders herein are, at and as of such Time of Delivery, true and correct, the condition that the Company and the Selling Stockholders shall have performed all of its and their obligations hereunder theretofore to be performed, and the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(a) hereof; all material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433 under the Act; if the Company has elected to rely upon Rule 462(b) under the Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m., Washington, D.C. time, on the date of this Agreement; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction;
(b) Xxxxx Xxxxx L.L.P., counsel for the Underwriters, shall have furnished to you such written opinion or opinions, dated such Time of Delivery, in form and substance reasonably satisfactory to you, with respect to such matters as you may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;
(c) Xxxxxx & Xxxxxx L.L.P., counsel for the Company, shall have furnished to you their written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex II.
(d) Xxxxxxxx X. Xxxxx, General Counsel and Corporate Secretary of the Company, shall have furnished to you his written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex III.
(e) Xxxx Xxxxxxxxxx & Xxxxxxxxx LLP, special Indiana counsel for the Company, shall have furnished to you their written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex IV.
(f) Xxxxxx LLP, counsel for each of the Selling Stockholders, as indicated in Schedule IIA hereto, shall have furnished to you their written opinion with respect to each of the Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex V.
(g) Such local counsel as you shall reasonably require shall have furnished to you their written opinion with respect to each of the foreign Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex VI.
(h) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, UHY, LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, Flackman Xxxxxxx & Xxxxxx, P.A. shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) Neither the Company nor the Subsidiaries shall have sustained since the date of the latest audited financial statements included in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, other than as set forth or contemplated in the Pricing Prospectus and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or the Subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and the Subsidiaries, other than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Pricing Prospectus;
(k) On or after the Applicable Time, there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the NYSE; (ii) a suspension or material limitation in trading in the Company’s securities on the NYSE; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Texas State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus;
(l) The Shares to be sold at such Time of Delivery shall have been duly admitted for trading and quotation on the NYSE;
(m) The Company shall have obtained and delivered to the Underwriters executed copies of a lock-up agreement from each of its directors and executive officers, the Selling Stockholders and each other stockholder identified on Schedule IV hereto, in the form attached as Annex I hereto;
(n) The Company shall have complied with the provisions of Section 5(c) hereof with respect to the furnishing of prospectuses on the New York Business Day next succeeding the date of this Agreement; and
(o) The Company and the Selling Stockholders shall have furnished or caused to be furnished to you at such Time of Delivery certificates of officers of the Company and of the Selling Stockholders, respectively, satisfactory to you as subject to the accuracy of the representations and warranties of the Company and the Selling StockholdersStockholders herein contained, respectively, herein at as of the date hereof and as of such Time the Closing Date (or in the case of Deliverythe Additional Shares as of the Additional Closing Date), as to the absence from any certificates, opinions, written statements or letters furnished to you or to Xxxxxx & Xxxxxx L.L.P. ("Underwriters' Counsel") pursuant to this Section 6 of any misstatement or omission, to the performance by the Company and the Selling Stockholders of all of their respective obligations hereunder hereunder, and to be performed the following additional conditions:
(a) The Registration Statement, including any related registration statement filed pursuant to Rule 462(b) under the Act, shall have become effective not later than 5:30 P.M., New York time, on the date of this Agreement or at such later time and date as shall have been consented to in writing by you; if the Company shall have elected to rely upon Rule 430A or Rule 434 of the Regulations, the Prospectus shall have been filed with the Commission in a timely fashion in accordance with Section 4(a) hereof; and, at or prior to such Time the Closing Date and Additional Closing Date, as the case may be, no stop order suspending the effectiveness of Delivery, and the Company Registration Statement or any post-effective amendment thereof shall have furnished been issued and no proceedings therefor shall have been initiated or caused to be furnished certificates as to threatened by the matters set forth in subsections (a) of this Section and as to such other matters as you may reasonably requestCommission.
(pb) The Company At the Closing Date and each Additional Closing Date, you shall have furnished received the opinion of Xxxxxx Xxxxxxxx & Xxxx LLP, counsel for the Company, dated the Closing Date or caused the Additional Closing Date, as the case may be, addressed to be furnished the Underwriters and in form and substance satisfactory to you at such Time of Delivery a certificate of the Executive Vice PresidentUnderwriters' Counsel, Chief Financial Officer and Treasurer to the effect that:
(i) He Each of the Company and its Subsidiaries has been duly organized and is familiar validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation or formation. Each of the Company and its Subsidiaries is duly qualified and in good standing as a foreign corporation in each jurisdiction in which the character or location of its properties (owned, leased or licensed) or the nature or conduct of its business makes such qualification necessary, except for those failures to be so qualified or in good standing which will not in the aggregate have a material adverse effect on the Company and its Subsidiaries taken as a whole. Each of the Company and its Subsidiaries has all requisite power and authority to own, lease and license its respective properties and conduct its business as now being conducted and as described in the Registration Statement and the Prospectus. All of the issued and outstanding capital stock of each Subsidiary has been duly and validly issued and is fully paid and nonassessable and, to such counsel's knowledge, was not issued in violation of, and is free of, preemptive rights and is owned directly or indirectly by the Company, free and clear of any lien, encumbrance, claim, security interest, restriction on transfer, stockholders' agreement, voting trust or other defect of title whatsoever.
(ii) The Company has authorized capital stock as set forth under the caption "Capitalization" in the Registration Statement and the Prospectus. All of the outstanding shares of Common Stock are duly and validly authorized and issued, are fully paid and nonassessable and were not issued in violation of or subject to any preemptive rights. The Shares to be delivered by the Company on the Closing Date or Additional Closing Date, as the case may be, have been duly and validly authorized and, when delivered in accordance with this Agreement, will be duly and validly issued, fully paid and nonassessable and will not have been issued in violation of or subject to any preemptive rights. Each of the Underwriters will receive good, valid and marketable title to the Firm Shares and the Additional Shares being sold by the Company hereunder, free and clear of all liens, encumbrances, claims, security interests, restrictions on transfer, stockholders' agreements, voting trusts and other defects of title whatsoever. The shares of Common Stock to be issued in the Combination Transaction were offered and will be issued in a transaction exempt from the registration requirements of the Act pursuant to Section 4(2) of the Act, which was completed prior to the initial filing of the Registration Statement as contemplated by Rule 152 under the Act. The Common Stock, the Firm Shares and the Additional Shares conform to the descriptions thereof contained in the Registration Statement and the Prospectus under the caption "Description of Capital Stock", and, assuming the certificates for the Common Stock are in the form filed with the internal accounting records Commission, are in due and proper form and comply with the requirements of Delaware law, the Company's certificate of incorporation and by-laws, and the requirements of the NASDAQ.
(iii) Except as described in or contemplated by the Prospectus, to the knowledge of such counsel, there are no outstanding securities of the Company or any Subsidiary convertible or exchangeable into or evidencing the right to purchase or subscribe for any shares of Common Stock of the Company or shares of capital stock, partnership interests or membership interests of any Subsidiary, respectively, and there are no outstanding options, warrants, or rights of any character obligating the Company or any Subsidiary to issue any shares of its capital stock, any partnership interests or any membership interests, as applicable, or any securities convertible or exchangeable or evidencing the right to purchase or subscribe therefor; and except as described in the Prospectus, to the knowledge of counsel, no holder of securities of the Company or any Subsidiary or any other person has the right, contractual or otherwise, which has not been satisfied or effectively waived, to cause the Company to sell or otherwise issue to them, or to permit them to underwrite the sale of, any of the Shares.
(iv) This Agreement has been duly and validly authorized, executed and delivered by the Company.
(iiv) He To such counsel's knowledge, there is no litigation or governmental or other action, suit, proceeding or investigation before any court or before or by any public, regulatory or governmental agency or body pending or, to the best of such counsel's knowledge, threatened against, or involving the properties or business of, the Company or any of its Subsidiaries, which, if resolved against the Company or such Subsidiary, individually or, to the extent involving related claims or issues, in the aggregate, is of a character required to be disclosed in the Registration Statement and the Prospectus which has reviewed not been properly disclosed therein.
(vi) The execution, delivery, and performance of this Agreement and the “Recent Developments” section contained consummation of the transactions contemplated hereby do not and will not (A) conflict with or result in both a breach of any of the Preliminary terms and provisions of, or constitute a default (or an event which with notice or lapse of time, or both, would constitute a default) or require consent under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of its Subsidiaries pursuant to the terms of any agreement, instrument, franchise, license or permit known to such counsel to which the Company or any of its Subsidiaries is a party or by which any of such corporations or their respective properties or assets may be bound or (B) violate or conflict with any provision of the organizational documents of the Company or any of its Subsidiaries, or, to the knowledge of such counsel, any judgment, decree, order, statute, rule or regulation of any court or any public, governmental or regulatory agency or body having jurisdiction over the Company or any of its Subsidiaries or any of their respective properties or assets. To such counsel's knowledge, no consent, approval, authorization, order, registration, filing, qualification, license or permit of or with any court or any public, governmental, or regulatory agency or body having jurisdiction over the Company or any of its Subsidiaries or any of their respective properties or assets is required for the execution, delivery and performance of this Agreement or the consummation of the transactions contemplated hereby, except for (1) such as may be required under foreign securities laws or state securities or Blue Sky laws in connection with the purchase and distribution of the Shares by the Underwriters (as to which such counsel need express no opinion) and (2) such as have been made or obtained under the Act.
(vii) The Registration Statement and the Prospectus and any amendments thereof or supplements thereto (other than the financial statements and schedules and other financial and petroleum engineering data included therein, as to which no opinion need be rendered) comply as to form in all material respects with the requirements of the Act and the Regulations.
(viii) The Registration Statement is effective under the Act, and, to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereof has been issued and no proceedings therefor have been initiated or threatened by the Commission, and all filings required by Rule 424(b) of the Regulations have been made.
(ix) Except as disclosed in the Prospectus, there are no contracts, agreements or understandings known to such counsel between the Company and any person granting such person the right to require the Company to file a registration statement under the Act with respect to any securities of the Company owned or to be owned by such person or to require the Company to include such securities in the securities registered pursuant to the Registration Statement or in any securities being registered pursuant to any other registration statement filed by the Company under the Act; and all rights to require registration of any securities under that agreement have been waived with respect to the offering contemplated hereby and for 180 days after the date of the initial public offering of the Shares.
(x) In addition, such opinion shall also contain a statement that such counsel has participated in conferences with officers and representatives of the Company, representatives of the independent public accountants for the Company and the Underwriters at which the contents and the Prospectus and related matters were discussed, and no facts have come to the attention of such counsel which would lead such counsel to believe that either the Registration Statement at the time it became effective (including the information deemed to be part of the Registration Statement at the time of effectiveness pursuant to Rule 430A or Rule 434, if applicable), or any amendment thereof made prior to the Closing Date or Additional Closing Date, as the case may be, as of the date of such amendment, contained an untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus as of its date (or any amendment thereof or supplement thereto made prior to the Closing Date or the Additional Closing Date, as the case may be, as of the date of such amendment or supplement) contained or contains an untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that such counsel need express no belief or opinion with respect to the financial statements and schedules and other financial and petroleum engineering data included therein).
(xi) The Shares to be sold under this Agreement have been approved for quotation on the NASDAQ upon notice of issuance.
(xii) Based on current law, the holding periods for the holders of the Company's unregistered securities for purposes of Rule 144 of the Act are as stated under the caption "Shares Eligible for Future Sale" in the Prospectus. The information presented in In rendering such Recent Developments section opinion, such counsel may rely (A) has been prepared as to matters involving the application of laws other than the laws of the United States and jurisdictions in good faith which they are admitted, to the extent such counsel deems proper and based to the extent specified in such opinion, if at all, upon assumptions that he believes are reasonable an opinion or opinions, (in form and consistent substance reasonably satisfactory to Underwriters' Counsel) of other counsel reasonably acceptable to Underwriters' Counsel, familiar with the operations applicable laws; (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and (B) is a fair estimate in all material respects certificates or other written statements of officers of departments of various jurisdictions having custody of documents respecting the corporate existence or good standing of the Company’s total revenues Company and net income for the three months ended June 30its Subsidiaries, 2011 and has been derived from the Company’s accounting and/or financial records.provided that copies of any such statements or certificates shall be delivered to Underwriters'
Appears in 1 contract
Conditions of Underwriters’ Obligations. The several obligations of the Underwriters hereunderto purchase and pay for the Shares, as to the Shares to be delivered at each Time of Deliveryprovided 37 HALE XXX DORR DRAFT 5/3/97 herein, shall be subject, in their discretion, subject to the condition that accuracy in all material respects, as of the date hereof and as of the Closing Date (and, if applicable, the Option Closing Date), of the representations and warranties and other statements of the Company and of the Selling Stockholders herein are, at and as of such Time of Delivery, true and correct, the condition that the Company and the Selling Stockholders shall have performed Shareholders contained herein, to the performance in all material respects by the Company and the Selling Shareholders of its their covenants and their obligations hereunder theretofore to be performedhereunder, and to the following additional conditions:
(a) The Prospectus All filings required by Rule 424 and Rule 430A of the Rules and Regulations shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(a) hereof; all material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433 under the Act; if the Company has elected to rely upon Rule 462(b) under the Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m., Washington, D.C. time, on the date of this Agreement; no made. No stop order suspending the effectiveness of the Registration Statement or any part thereof Statement, as amended from time to time, shall have been issued and no proceeding for that purpose shall have been initiated or, to the knowledge of the Company or any Underwriter, threatened or contemplated by the Commission; no stop order suspending , and any request of the Commission for additional information (to be included in the Registration Statement or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission otherwise) shall have been complied with to your the reasonable satisfaction;satisfaction of the Underwriters.
(b) Xxxxx Xxxxx L.L.P.No Underwriter shall have disclosed in writing to the Company on or prior to the Closing Date (and, if applicable, the Option Closing Date), that the Registration Statement or Prospectus or any amendment or supplement thereto contains an untrue statement of fact which, in the opinion of counsel for to the Underwriters, shall have furnished to you such written opinion or opinions, dated such Time of Delivery, in form and substance reasonably satisfactory to you, with respect to such matters as you may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;is
(c) Xxxxxx On the Closing Date (and, if applicable, the Option Closing Date), you shall have received the opinion of Gibsxx, Xxnn & Xxxxxx L.L.P.Xrutxxxx XXX ("Gibsxx Xxxn"), counsel for the Company, shall have furnished addressed to you their written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex II.
(d) Xxxxxxxx X. Xxxxx, General Counsel and Corporate Secretary of the Company, shall have furnished to you his written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex III.
(e) Xxxx Xxxxxxxxxx & Xxxxxxxxx LLP, special Indiana counsel for the Company, shall have furnished to you their written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex IV.
(f) Xxxxxx LLP, counsel for each of the Selling Stockholders, as indicated in Schedule IIA hereto, shall have furnished to you their written opinion with respect to each of the Selling Stockholders, dated the First Time of DeliveryClosing Date (and, in form and substance satisfactory to you, to the effect set forth in Annex V.
(g) Such local counsel as you shall reasonably require shall have furnished to you their written opinion with respect to each of the foreign Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex VI.
(h) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, UHY, LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, Flackman Xxxxxxx & Xxxxxx, P.A. shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) Neither the Company nor the Subsidiaries shall have sustained since the date of the latest audited financial statements included in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, other than as set forth or contemplated in the Pricing Prospectus and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or the Subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and the Subsidiaries, other than as set forth or contemplated in the Pricing Prospectusif applicable, the effect of which, in any such case described in clause (i) or (iiOption Closing Date), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Pricing Prospectus;
(k) On or after the Applicable Time, there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the NYSE; (ii) a suspension or material limitation in trading in the Company’s securities on the NYSE; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Texas State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus;
(l) The Shares to be sold at such Time of Delivery shall have been duly admitted for trading and quotation on the NYSE;
(m) The Company shall have obtained and delivered to the Underwriters executed copies of a lock-up agreement from each of its directors and executive officers, the Selling Stockholders and each other stockholder identified on Schedule IV hereto, in the form attached as Annex I hereto;
(n) The Company shall have complied with the provisions of Section 5(c) hereof with respect to the furnishing of prospectuses on the New York Business Day next succeeding the date of this Agreement; and
(o) The Company and the Selling Stockholders shall have furnished or caused to be furnished to you at such Time of Delivery certificates of officers of the Company and of the Selling Stockholders, respectively, satisfactory to you as to the accuracy of the representations and warranties of the Company and the Selling Stockholders, respectively, herein at and as of such Time of Delivery, as to the performance by the Company and the Selling Stockholders of all of their respective obligations hereunder to be performed at or prior to such Time of Delivery, and the Company shall have furnished or caused to be furnished certificates as to the matters set forth in subsections (a) of this Section and as to such other matters as you may reasonably request.
(p) The Company shall have furnished or caused to be furnished to you at such Time of Delivery a certificate of the Executive Vice President, Chief Financial Officer and Treasurer to the effect that:
(i) He is familiar The Company and its subsidiary have been duly incorporated and are validly existing as corporations in good standing under the laws of the states or other jurisdictions in which they are incorporated, with full power and authority (corporate and other) to own, lease and operate their properties and conduct their business as described in the internal accounting records Registration Statement; the Company and its subsidiary are duly qualified to do business as foreign corporations in good standing in each state or other jurisdiction in which their ownership or leasing of property or conduct of business legally requires such qualification, except where the failure to be so qualified would not have a material adverse effect on the ability of the Company and its subsidiary to conduct their business as described in the Registration Statement; and the outstanding shares of capital stock of the Company's subsidiary have been duly authorized and validly issued, are fully paid and nonassessable and, to the knowledge of such counsel after due inquiry, are owned by the Company free and clear of any mortgage, pledge, lien, encumbrance, charge or adverse claim and are not the subject of any agreement or understanding with any person; no options, warrants or other rights to purchase, agreement or other obligations to issue or other rights to convert any obligations into shares of capital stock or ownership interests in the subsidiary are outstanding.
(ii) The Company has duly and validly authorized capital stock as set forth under the heading "Capitalization" in the Prospectus; all outstanding shares of Common Stock of the Company and the Shares conform to the description thereof in the Prospectus under the heading "Description of Capital Stock", and the outstanding shares of Common Stock have been duly authorized and are validly issued, fully paid and non-assessable; the Shares to be sold by the Company have been duly authorized and, when delivered and paid for in accordance with this Agreement, will be validly issued, fully paid and non-assessable, and the shareholders of the Company have no preemptive rights with respect to the Shares.
(iii) Such counsel has been advised by the staff of the Commission that the Registration Statement has become effective under the Act and, to the knowledge of such counsel after due inquiry, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act.
(iv) The Registration Statement and the Prospectus, and each amendment or supplement thereto, as of their respective effective or issue date, comply as to form and appear on their face to be appropriately responsive in all material respects to the requirements of the Act and the applicable rules and regulations (except that such counsel need express no opinion as to the financial statements or other financial data).
(v) The descriptions in the Registration Statement and Prospectus of contracts and other documents filed as exhibits to the Registration Statement are accurate in all material respects; all other material agreements between the Company and third parties expressly referenced in the Prospectus are legal, valid and binding obligations of the Company.
(iivi) He No authorization, approval, consent, order, registration or qualification of or with any court or governmental body, authority or agency is required with respect to the Company in connection with the transactions contemplated by this Agreement, except such as may be required under the Act or the Rules and Regulations or as may be required by the NASD or under state securities laws in connection with the purchase and distribution of the Shares by the Underwriters.
(vii) The filing of the Registration Statement has reviewed been duly authorized by the “Recent Developments” section contained in both Board of Directors of the Preliminary Prospectus Company. This Agreement has been duly authorized, executed and delivered by the Company. The performance of this Agreement and the Prospectus. The information presented consummation of the transactions herein contemplated will not result in such Recent Developments section (A) has been prepared a violation of the Company's articles of incorporation or bylaws or result in good faith a breach or violation of any of the terms and based provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon assumptions that he believes are reasonable and consistent with the operations any properties or assets of the Company and its subsidiary under, any statute, or under any indenture, mortgage, deed of trust, note, loan agreement, sale and leaseback arrangement, or any other agreement or instrument known to such counsel after due inquiry to which the Company or its subsidiary is a party or by which they are bound or to which any of the properties or assets of the Company or its subsidiary are subject, or any order, rule or regulation known to such counsel after due inquiry of any court or governmental agency or body having jurisdiction over the Company or its subsidiary or their properties, except, in the case of any such violation, breach, default, creation or imposition, to such extent as does not materially adversely affect the business of the Company and its subsidiary taken as a whole.
(viii) To the knowledge of such counsel after due inquiry, (A) there are no material (individually, or in the aggregate) legal, governmental or regulatory proceedings pending or threatened to which the Company or its subsidiary is a party or of which the business or properties of the Company or its subsidiary is the subject which are not disclosed in the Registration Statement and Prospectus; (B) is there are no contracts or documents of a fair estimate character required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement which are not described or filed as required; and (C) there are no statutes or regulations required to be described in the Registration Statement or Prospectus which are not described as required.
(ix) To the knowledge of such counsel after due inquiry, the Company and its subsidiary hold all licenses, certificates, permits and approvals from all state, federal and other regulatory authorities, and have satisfied in all material respects the requirements imposed by regulatory bodies, administrative agencies or other governmental bodies, agencies or officials, that are required for the Company and its subsidiary lawfully to own, lease and operate its properties and conduct its business as described in the Prospectus, and, to the knowledge of such counsel after due inquiry, each of the Company and its subsidiary is conducting its business in compliance in all material respects with all of the laws, rules and regulations of each jurisdiction in which it conducts its business.
(x) The statements made in the Registration Statement under the captions "Dividend Policy", "Capitalization", "Description of Capital Stock", and "Certain Charter and Bylaw Provisions", to the extent that they constitute summaries of documents referred to therein or matters of law or legal conclusions, have been reviewed by such counsel and are accurate summaries and fairly present the information disclosed therein.
(xi) The Company is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended. Such counsel shall confirm that in the course of its duties in connection with the preparation of the Registration Statement and Prospectus, nothing came to such counsel's attention that would lead them to believe that either the Registration Statement or Prospectus or any amendment or supplement thereto (other than the financial statements or other financial data as to which such counsel need express no opinion) contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. In rendering the foregoing opinion, such counsel may rely, provided that the opinion shall state that you and they are entitled to so rely, (1) as to matters involving laws of any jurisdiction other than the Commonwealth of Virginia, the General Corporation Law of the State of Delaware or the United States, upon opinions addressed to the Underwriters of other counsel satisfactory to them and Hale xxx Dorr XXX ("Hale xxx Dorr"), counsel to the Underwriters, and (2) as to all matters of fact, upon certificates and written statements of the executive officers of, and accountants for, the Company.
(d) On the Closing Date (and, if applicable, the Option Closing Date), you shall have received the opinion of Gibsxx, Xxnn & Xrutxxxx XXX, counsel to the Selling Shareholders, addressed to you and dated the Closing Date (and, if applicable, the Option Closing Date), to the effect that:
(i) Each Selling Shareholder has duly authorized, executed and delivered the Custody Agreement and Power of Attorney, appointing __________________ as such Selling Shareholder's Custodian with authority to take custody of and deliver (a) the Shares as represented by certificates on behalf of such Selling Shareholder in connection with the transactions contemplated by this Agreement and (b) the Custody Agreement, and appointing __________________ and _____________ as such Selling Shareholder's attorneys-in-fact with authority to execute and deliver this Agreement on behalf of such Selling Shareholder and otherwise to act on behalf of such Selling Shareholder in connection with the transactions contemplated by this Agreement and the Power of Attorney.
(ii) This Agreement has been duly authorized, executed and delivered on behalf of the Selling Shareholders, and is a valid and legally binding obligation of the Selling Shareholders enforceable in accordance with its terms (except to the extent the enforceability of the indemnification provisions of Section 7 hereof may be limited by public policy considerations as expressed in the Act and as construed by courts of competent jurisdiction and except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors' rights generally).
(iii) Each Selling Shareholder has full legal right, power and authority, and any approval required by law (other than as required by the Act, the NASD and state securities and Blue Sky Laws) to sell, assign, transfer and deliver the Shares to be sold by such Selling Shareholder.
(iv) No consent, approval, authorization or order of any court, or governmental agency or body is required for consummation of the transactions contemplated by this Agreement in connection with the Shares to be sold by each Selling Shareholder hereunder except such as may be required under the Act or the Rules and Regulations or as may be required by the NASD or under state securities laws.
(v) Each Selling Shareholder has good and valid title to the Shares being sold by such Selling Shareholder hereunder, free and clear of all liens, mortgages, pledges, encumbrances, claims, equities and security interests, and has transferred to the Underwriters good and valid title to the Shares being sold by such Selling Shareholder on the Closing Date (and, if applicable, the Option Closing Date), free and clear of all liens, mortgages, pledges, encumbrances, claims, equities and security interests whatsoever. In rendering the foregoing opinion, such counsel may rely, provided that the opinion shall state that you and they are entitled to so rely, (1) as to matters involving laws of any jurisdiction other than the Commonwealth of Virginia or the United States, upon opinions addressed to the Underwriters of other counsel satisfactory to them and to Hale xxx Dorr, xxd (2) as to all matters of fact, upon certificates and written statements of the Selling Shareholders.
(e) You shall have received on the Closing Date (and, if applicable, the Option Closing Date), from Hale xxx Dorr, xxunsel to the Underwriters, such opinion or opinions, dated the Closing Date (and, if applicable, the Option Closing Date) with respect to the incorporation of the Company’s total revenues , the validity of the Shares, the Registration Statement, the Prospectus and net income for the three months ended June 30, 2011 and has been derived from the Company’s accounting and/or financial records.other related matters
Appears in 1 contract
Sources: Underwriting Agreement (Advanced Communication Systems Inc)
Conditions of Underwriters’ Obligations. The --------------------------------------- obligations of the Underwriters hereunder, as to purchase and pay for the Securities shall be subject to the Shares to be delivered at each Time accuracy of Delivery, shall be subject, in their discretionthe rep- resentations and warranties made herein on the part of the Offerors, to the condition that all representations and warranties and other statements performance by the Offerors of the Company and of the Selling Stockholders herein are, at and as of such Time of Delivery, true and correct, the condition that the Company and the Selling Stockholders shall have performed all of its and their obligations hereunder theretofore to be performedperformed hereunder prior to the Closing Date, and to the following additional conditions:
(a) The Prospectus shall have been filed with with, or transmitted for filing to, the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(a) hereof; all material required 424 prior to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433 under the Act; if the Company has elected to rely upon Rule 462(b) under the Act6:00 P.M., the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m., Washington, D.C. timeNew York Time, on the second business day after the date of this Agreement; no , or such other time and date as may be approved by you.
(b) No stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued be in effect, and no proceeding proceedings for that purpose shall have been initiated be pending before, or threatened by by, the Commission; no stop order suspending or preventing Commission on the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the CommissionClosing Date; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction;
(b) Xxxxx Xxxxx L.L.P., counsel for the Underwriters, shall have furnished to you such written opinion or opinions, dated such Time of Delivery, in form and substance reasonably satisfactory to you, with respect to such matters as you may reasonably request, and such counsel shall have received a certificate, dated the Closing Date and signed by an officer of the Company, to the effect that no such papers stop order is in effect and information as they may reasonably request that no proceedings for such purpose are pending before, or to enable them to pass upon such matters;the knowledge of the Company threatened by, the Commission.
(c) Xxxxxx On the Closing Date, you shall have received from Richards, Layton & Xxxxxx L.L.P.Finger, Delaware counsel for the Company, shall have furnished to you their written opinionWorsham, dated such Time Forsythe & Wooldridge, L.L.P., General Counsel for xxe Cxxxxxx, Xxid & Priest LLP, of Deliverycounsel for the Company, in xxd Winthrop, Stimson, Putnam & Roberts, Counsel for the Underwriterx, xxxnioxx xx xubstantially the form and substance satisfactory to prescribed in Schedules III, IV, V and VI hereto (i) with such changes therein as may be agreed upon by the Company and you, with the approval of Counsel for the Underwriters, and (ii) if the Prospectus relating to the effect set forth on Annex IISecurities shall be supplemented or amended after the Prospectus shall have been filed with, or transmitted for filing to, the Commission pursuant to Rule 424, with any changes therein necessary to reflect such supplementation or amendment.
(d) Xxxxxxxx X. XxxxxOn and as of the date hereof, General Counsel and Corporate Secretary of you shall have received from Deloitte & Touche LLP a letter to the effect that (i) they are independent certified public accountants with respect to the Company, shall have furnished to you his written within the meaning of the Securities Act and the applicable published rules and regulations thereunder, (ii) in their opinion, dated such Time of Delivery, the financial statements audited by them and included or incorporated by reference in the Prospectus comply as to form and substance satisfactory to you, to in all material respects with the effect set forth on Annex III.
(e) Xxxx Xxxxxxxxxx & Xxxxxxxxx LLP, special Indiana counsel for the Company, shall have furnished to you their written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex IV.
(f) Xxxxxx LLP, counsel for each applicable accounting requirements of the Selling StockholdersExchange Act and the published rules and regulations thereunder, as indicated (iii) on the basis of a reading of the unaudited amounts of operating revenues and net income included or incorporated by reference in Schedule IIA heretothe Prospectus and the related financial statements from which these amounts were derived, shall the latest available unaudited financial statements of the Company and the minute books of the Company and inquiries of officers of the Company who have furnished to you their written opinion responsibility for financial and accounting matters (it being understood that the foregoing procedures do not constitute an audit made in accordance with generally accepted auditing standards and would not necessarily reveal matters of significance with respect to each the comments made in such letter, and accordingly that Deloitte & Touche LLP makes no representation as to the sufficiency of such procedures for the several Underwriters' purposes), nothing has come to their attention which caused them to believe that (A) the unaudited financial statements incorporated by reference in the Prospectus were not determined in accor- dance with generally accepted accounting principles applied on a basis substantially consistent with that of the Selling Stockholderscorresponding amounts in the latest available audited financial statements, dated (B) the First Time unaudited amounts of Delivery, in form operating revenues and substance satisfactory to you, to the effect set forth in Annex V.
(g) Such local counsel as you shall reasonably require shall have furnished to you their written opinion with respect to each net income of the foreign Selling Stockholders, dated Company included or incorporated by reference in the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex VI.
(h) On the date Prospectus were not determined on a basis substantially consistent with that of the Prospectus at a time prior to corresponding amounts in the execution audited statements of this Agreementincome incorporated by reference in the Prospectus, at 9:30 a.m., New York City time, on (C) for the effective date twelve months ended as of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, UHY, LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, Flackman Xxxxxxx & Xxxxxx, P.A. shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) Neither the Company nor the Subsidiaries shall have sustained since the date of the latest audited available financial statements included of the Company, there were any decreases in operating revenues or net income as compared with the Pricing Prospectus any loss or interference with its business from firecomparable period of the preceding year, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, other than as set forth or contemplated in the Pricing Prospectus and (iiD) since at a specified date not more than seven days prior to the respective dates as date of which information is given in the Pricing Prospectus such letter, there shall not have been was any change in the capital stock of the Company, short-term bank loans, commercial paper, notes payable to Texas Utilities Company or long-term debt of the Company or decrease in its net assets, in each case as compared with amounts shown in the Subsidiaries most recent balance sheet incorporated by reference in the Prospectus, except in all instances for changes or any changedecreases that the Prospectus discloses have occurred or may occur or which are occasioned by the declaration of a regular quarterly dividend or the acquisition of long-term debt for sinking fund purposes, or any development involving a prospective changewhich are described in such letter, and (iv) they have compared the dollar amounts (or percentages or ratios derived from such dollar amounts) and other financial information included or incorporated by reference in or affecting the Registration Statement and the Prospectus as reasonably requested by you (in each case to the extent that such dollar amounts, percentages and other financial information are derived from the general affairs, management, financial position, stockholders’ equity or results of operations accounting records of the Company subject to the internal controls of the Company's accounting system or are derived indirectly from such records by analysis or computation) with the results obtained from inquiries, a reading of such general accounting records and other procedures specified in such letter, and have found such dollar amounts, percentages and other financial information to be in agreement with such results, except as otherwise specified in such letter. On and as of the Subsidiaries, other than Closing Date you shall have received from Deloitte & Touche LLP a letter to the effect that such accountants reaffirm as set forth or contemplated of the Closing Date and as though made on the Closing Date the statements made in the Pricing Prospectusletter furnished by such accountants on , 1997.
(e) Since the effect most recent dates as of which, in any such case described in clause (i) or (ii), which in- formation is given in the judgment Registration Statement or the Prospectus there shall not have been any material adverse change in the business, property or financial condition of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at Company and, since such Time of Delivery on the terms and in the manner contemplated in the Pricing Prospectus;
(k) On or after the Applicable Timedates, there shall not have occurred been any of material transaction entered into by the following: (i) a suspension or material limitation Company, in trading in securities generally on the NYSE; (ii) a suspension or material limitation in trading each case other than transactions in the Company’s securities on the NYSE; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Texas State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation ordinary course of hostilities involving the United States or the declaration business and transactions contemplated by the United States of a national emergency Registration Statement or war or (v) Prospectus and at the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus;
(l) The Shares to be sold at such Time of Delivery Closing Date you shall have been duly admitted for trading and quotation on the NYSE;
(m) The Company shall have obtained and delivered to the Underwriters executed copies of received a lock-up agreement from each of its directors and executive officers, the Selling Stockholders and each other stockholder identified on Schedule IV hereto, in the form attached as Annex I hereto;
(n) The Company shall have complied with the provisions of Section 5(c) hereof with respect to the furnishing of prospectuses on the New York Business Day next succeeding the date of this Agreement; and
(o) The Company and the Selling Stockholders shall have furnished or caused to be furnished to you at such Time of Delivery certificates of officers of the Company and of the Selling Stockholders, respectively, satisfactory to you as to the accuracy of the representations and warranties of the Company and the Selling Stockholders, respectively, herein at and as of such Time of Delivery, as to the performance by the Company and the Selling Stockholders of all of their respective obligations hereunder to be performed at or prior certificate to such Time of Delivery, effect dated the Closing Date and the Company shall have furnished or caused to be furnished certificates as to the matters set forth in subsections (a) of this Section and as to such other matters as you may reasonably request.
(p) The Company shall have furnished or caused to be furnished to you at such Time of Delivery a certificate of the Executive Vice President, Chief Financial Officer and Treasurer to the effect that:
(i) He is familiar with the internal accounting records signed by an officer of the Company.
(iif) He has reviewed the “Recent Developments” section contained All legal proceedings to be taken in both the Preliminary Prospectus and the Prospectus. The information presented in such Recent Developments section (A) has been prepared in good faith and based upon assumptions that he believes are reasonable and consistent connection with the operations issuance and sale of the Company Securities shall have been satisfactory in form and (B) is a fair estimate in all material respects substance to Coun- sel for the Underwriters. In case any of the Company’s total revenues and net income for conditions specified above in this Section 7 shall not have been fulfilled, this Agreement may be terminated with the three months ended June 30, 2011 and has been derived from consent of Underwriters which have agreed to purchase in the aggregate 50% or more of the liquidation preference amount of the Securities upon notice thereof to the Company’s accounting and/or financial records. Any such termination shall be without liability of any party to any other party except as otherwise provided in Sections 6(g) and 9 hereof.
Appears in 1 contract
Conditions of Underwriters’ Obligations. The obligations of the several Underwriters hereunderto purchase and pay for the Shares as provided herein shall be subject to the accuracy, as to of the date hereof and the Closing Date and any later date on which Option Shares are to be delivered at each Time of Delivery, shall be subject, in their discretion, to the condition that all representations and warranties and other statements of the Company and of the Selling Stockholders herein are, at and as of such Time of Delivery, true and correct, the condition that the Company and the Selling Stockholders shall have performed all of its and their obligations hereunder theretofore to be performed, and the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(a) hereof; all material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433 under the Act; if the Company has elected to rely upon Rule 462(b) under the Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m., Washington, D.C. time, on the date of this Agreement; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction;
(b) Xxxxx Xxxxx L.L.P., counsel for the Underwriters, shall have furnished to you such written opinion or opinions, dated such Time of Delivery, in form and substance reasonably satisfactory to you, with respect to such matters as you may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;
(c) Xxxxxx & Xxxxxx L.L.P., counsel for the Company, shall have furnished to you their written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex II.
(d) Xxxxxxxx X. Xxxxx, General Counsel and Corporate Secretary of the Company, shall have furnished to you his written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex III.
(e) Xxxx Xxxxxxxxxx & Xxxxxxxxx LLP, special Indiana counsel for the Company, shall have furnished to you their written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex IV.
(f) Xxxxxx LLP, counsel for each of the Selling Stockholderspurchased, as indicated in Schedule IIA heretothe case may be, shall have furnished to you their written opinion with respect to each of the Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex V.
(g) Such local counsel as you shall reasonably require shall have furnished to you their written opinion with respect to each of the foreign Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex VI.
(h) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, UHY, LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, Flackman Xxxxxxx & Xxxxxx, P.A. shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) Neither the Company nor the Subsidiaries shall have sustained since the date of the latest audited financial statements included in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, other than as set forth or contemplated in the Pricing Prospectus and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or the Subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and the Subsidiaries, other than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Pricing Prospectus;
(k) On or after the Applicable Time, there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the NYSE; (ii) a suspension or material limitation in trading in the Company’s securities on the NYSE; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Texas State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus;
(l) The Shares to be sold at such Time of Delivery shall have been duly admitted for trading and quotation on the NYSE;
(m) The Company shall have obtained and delivered to the Underwriters executed copies of a lock-up agreement from each of its directors and executive officers, the Selling Stockholders and each other stockholder identified on Schedule IV hereto, in the form attached as Annex I hereto;
(n) The Company shall have complied with the provisions of Section 5(c) hereof with respect to the furnishing of prospectuses on the New York Business Day next succeeding the date of this Agreement; and
(o) The Company and the Selling Stockholders shall have furnished or caused to be furnished to you at such Time of Delivery certificates of officers of the Company and of the Selling Stockholders, respectively, satisfactory to you as to the accuracy of the representations and warranties of the Company and the Selling StockholdersStockholders herein, respectively, herein at and as of such Time of Delivery, as to the performance by the Company and the Selling Stockholders of all of their respective obligations hereunder and to the following additional conditions:
(a) The Registration Statement shall have become effective not later than 2:00 P.M., San Francisco time, on the date following the date of this Agreement, or such later date as shall be consented to in writing by you; and no stop order suspending the effectiveness thereof shall have been issued and no proceedings for that purpose shall have been initiated or, to the knowledge of the Company, any Selling Stockholder or any Underwriter, threatened by the Commission, and any request of the Commission for additional information (to be performed at included in the Registration Statement or prior the Prospectus or otherwise) shall have been complied with to such Time the satisfaction of DeliveryUnderwriters' Counsel.
(b) All corporate proceedings and other legal matters in connection with this Agreement, the form of Registration Statement and the Prospectus, and the Company registration, authorization, issue, sale and delivery of the Shares, shall have been reasonably satisfactory to Underwriters' Counsel, and such counsel shall have been furnished with such papers and information as they may reasonably have requested to enable them to pass upon the matters referred to in this Section.
(c) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, or caused any later date on which Option Shares are to be furnished certificates purchased, as to the matters case may be, there shall not have been any change in the condition (financial or otherwise), earnings, operations or business of the Company and its subsidiaries considered as one enterprise from that set forth in subsections (a) the Registration Statement or Prospectus, which, in your sole judgment, is material and adverse and that makes it, in your sole judgment, impracticable or inadvisable to proceed with the public offering of this Section and the Shares as to such other matters as you may reasonably requestcontemplated by the Prospectus.
(pd) The Company You shall have furnished or caused received on the Closing Date and on any later date on which Option Shares are to be furnished purchased, as the case may be, the following opinion of Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation, counsel for the Company and the Selling Stockholders, except with respect to you at subparagraphs (i), (ii), (iii), (v), (xv) and (xvi) below to the extent that they relate to NetGravity Europe Limited or NetGravity Asia Pacific K.K., which opinions shall be given by Xxxx & Maw (Europe) and Xxxxx & XxXxxxxx (Japan), respectively, each dated the Closing Date or such Time of Delivery a certificate later date on which Option Shares are to be purchased addressed to the Underwriters and with reproduced copies or signed counterparts thereof for each of the Executive Vice PresidentUnderwriters, Chief Financial Officer and Treasurer to the effect that:
(i) He The Company and each of NetGravity Europe Limited, NetGravity Asia Pacific K.K., and NetGravity (Hong Kong) Ltd. has been duly incorporated and is familiar with validly existing as a corporation in good standing under the internal accounting records laws of the Company.jurisdiction of its incorporation;
(ii) He The Company and each of NetGravity Europe Limited and NetGravity Asia Pacific K.K. has reviewed the “Recent Developments” section contained corporate power and authority to own, lease and operate its properties and to conduct its business as described in both the Preliminary Prospectus and the Prospectus. The information presented in ;
(iii) To such Recent Developments section (A) has been prepared counsel's knowledge, the Company and each of NetGravity Europe Limited and NetGravity Asia Pacific K.K. is duly qualified to do business as a foreign corporation and is in good faith and based upon assumptions that he believes are reasonable and consistent with standing in each jurisdiction, if any, in which the ownership or leasing of its properties or the conduct of its business requires such qualification, except where the failure to be so qualified or be in good standing would not have a material adverse effect on the financial condition, earnings, operations or business of the Company and its subsidiaries considered as one enterprise. To such counsel's knowledge, the Company does not own or control, directly or indirectly, any corporation, association or other entity other than NetGravity Europe Limited and NetGravity Asia Pacific K.K.;
(Biv) The authorized, issued and outstanding capital stock of the Company is as set forth in the Prospectus under the caption "Capitalization" as of the dates stated therein, the issued and outstanding shares of capital stock of the Company have been duly and validly issued and are fully paid and nonassessable, and, to such counsel's knowledge, will have not been issued in violation of or subject to any preemptive right, co-sale right, registration right, right of first refusal or other similar right;
(v) All issued and outstanding shares of capital stock of each of NetGravity Europe Limited and NetGravity Asia Pacific K.K. have been duly authorized and validly issued and, to such counsel's knowledge, are fully paid and nonassessable, and, to such counsel's knowledge, have not been issued in violation of or subject to any preemptive right, co-sale right, registration right, right of first refusal or other similar right and, to such counsel's knowledge, are owned by the Company free and clear of any pledge, lien, security interest, encumbrance, claim or equitable interest;
(vi) The Firm Shares or the Option Shares, as the case may be, to be issued by the Company pursuant to the terms of this Agreement have been duly authorized and, upon issuance and delivery against payment therefor in accordance with the terms hereof, will be duly and validly issued and fully paid and nonassessable, and will not have been issued in violation of or subject to any statutory preemptive right or, to such counsel's knowledge, contractual preemptive right, co-sale right, registration right, right of first refusal or other similar right.
(vii) The Company has the corporate power and authority to enter into this Agreement and to issue, sell and deliver to the Underwriters the Shares to be issued and sold by it hereunder;
(viii) This Agreement has been duly authorized by all necessary corporate action on the part of the Company and has been duly executed and delivered by the Company and, assuming due authorization, execution and delivery by you, is a fair estimate valid and binding agreement of the Company, enforceable in accordance with its terms, except insofar as indemnification provisions may be limited by applicable law and except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting creditors' rights generally or by general equitable principles;
(ix) The Registration Statement has become effective under the Act and, to such counsel's knowledge, (i) no stop order suspending the effectiveness of the Registration Statement has been issued and (ii) no proceedings for that purpose have been instituted or are pending or threatened under the Act; (x) The Registration Statement and the Prospectus, and each amendment or supplement thereto (other than the financial statements (including supporting schedules) and financial data derived therefrom as to which such counsel need express no opinion), as of the effective date of the Registration Statement, complied as to form in all material respects with the requirements of the Act and the applicable Rules and Regulations;
(xi) The information in the Prospectus under the caption "Description of Capital Stock," to the extent that it constitutes matters of law or legal conclusions, has been reviewed by such counsel and is a fair summary of such matters and conclusions; and the form of certificate evidencing the Common Stock and filed as an exhibit to the Registration Statement complies with Delaware law;
(xii) The descriptions in the Registration Statement and the Prospectus of the charter and bylaws of the Company under the caption "Description of Capital Stock" and of statutes are accurate and fairly present the information required to be presented by the Act and the applicable Rules and Regulations;
(xiii) To such counsel's knowledge, there are no agreements, contracts, leases or documents to which the Company is a party of a character required under the Act and the applicable Rules and Regulations to be described or referred to in the Registration Statement or Prospectus or to be filed as an exhibit to the Registration Statement which are not described or referred to therein or filed as required;
(xiv) The performance of this Agreement and the consummation of the transactions herein contemplated (other than performance of the Company’s total revenues 's indemnification obligations hereunder, concerning which no opinion need be expressed) does not (a) result in any violation of the Company's charter or bylaws or (b) to such counsel's knowledge, result in a material breach or material violation of any of the terms and net income for provisions of, or constitute a material default under, any bond, debenture, note or other evidence of indebtedness, or any lease, contract, indenture, mortgage, deed of trust, loan agreement, joint venture or other agreement or instrument filed as an exhibit to the three months ended June 30Registration Statement, 2011 or any applicable statute, rule or regulation known to such counsel or, to such counsel's knowledge, any order, writ or decree of any court, government or governmental agency or body having jurisdiction over the Company or any of its subsidiaries, or over any of their properties or operations;
(xv) No consent, approval, authorization or order of or qualification with any court, government or governmental agency or body having jurisdiction over the Company or any of its subsidiaries, or over any of their properties or operations is necessary in connection with the consummation by the Company of the transactions herein contemplated, except such as have been obtained under the Act or such as may be required under state or other securities or Blue Sky laws in connection with the purchase and the distribution of the Shares by the Underwriters;
(xvi) To such counsel's knowledge, there are no legal or governmental proceedings pending or threatened against the Company or any of its subsidiaries of a character required to be disclosed in the Registration Statement or the Prospectus by the Act or the Rules and Regulations, other than those described therein;
(xvii) To such counsel's knowledge, except as set forth in the Registration Statement and Prospectus, no holders of Common Stock or other securities of the Company have registration rights with respect to securities of the Company and, except as set forth in the Registration Statement and Prospectus, all holders of securities of the Company having rights known to such counsel to registration of such shares of Common Stock or other securities, because of the filing of the Registration Statement by the Company have, with respect to the offering contemplated thereby, waived such rights or such rights have expired by reason of lapse of time following notification of the Company's intent to file the Registration Statement or have included securities in the Registration Statement pursuant to the exercise of and in full satisfaction of such rights;
(xviii) Each Selling Stockholder which is not a natural person has full power and authority under its charter documents to enter into and to perform its obligations under the Power of Attorney and Custody Agreement to be executed and delivered by it in connection with the transactions contemplated herein; the Power of Attorney and Custody Agreement of each Selling Stockholder that is not a natural person has been duly authorized by such Selling Stockholder; the Power of Attorney and Custody Agreement of each Selling Stockholder has been duly executed and delivered by or on behalf of such Selling Stockholder; and the Power of Attorney and Custody Agreement of each Selling Stockholder constitutes the valid and binding agreement of such Selling Stockholder, enforceable in accordance with its terms, except as the enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors' rights generally or by general equitable principles;
(xix) Each of the Selling Stockholders has full right, power and authority to enter into and to perform its obligations under this Agreement and to sell, transfer, assign and deliver the Option Shares to be sold by such Selling Stockholder hereunder;
(xx) This Agreement has been duly authorized by each Selling Stockholder that is not a natural person and has been derived duly executed and delivered by or on behalf of each Selling Stockholder; and
(xxi) Upon the delivery of and payment for the Option Shares as contemplated in this Agreement, each of the Underwriters will receive valid title to the Option Shares purchased by it from such Selling Stockholder, free and clear of any pledge, lien, security interest, encumbrance, claim or equitable interest. In rendering such opinion, such counsel may assume that the Underwriters are without notice of any adverse claim or other defect in the title of the Option Shares being purchased from the Selling Stockholders. In addition, such counsel shall state that such counsel has participated in conferences with officials and other representatives of the Company’s accounting and/or , the Representatives, Underwriters' Counsel and the independent certified public accountants of the Company, at which such conferences the contents of the Registration Statement and Prospectus and related matters were discussed, and although they have not verified the accuracy or completeness of the statements contained in the Registration Statement or the Prospectus, nothing has come to the attention of such counsel which leads them to believe that, at the time the Registration Statement became effective and at all times subsequent thereto up to and on the Closing Date and on any later date on which Option Shares are to be purchased, the Registration Statement and any amendment or supplement thereto (other than the financial recordsstatements including supporting schedules and other financial and statistical information derived therefrom, as to which such counsel need express no comment) contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or at the Closing Date or any later date on which the Option Shares are to be purchased, as the case may be, the Registration Statement, the Prospectus and any amendment or supplement thereto (except as aforesaid) contained any untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Counsel rendering the foregoing opinion may rely as to questions of law not involving the laws of the United States or the States of California and Delaware upon opinions of local counsel, and as to questions of fact upon representations or certificates of officers of the Company, the Selling Stockholders or officers of the Selling Stockholders (when the Selling Stockholder is not a natural person), and of government officials, in which case their opinion is to state that they are so relying and that they have no knowledge of any material misstatement or inaccuracy in any such opinion, representation or certificate. Copies of any opinion, representation or certificate so relied upon shall be delivered to you, as Representatives of the Underwriters, and to Underwriters' Counsel.
Appears in 1 contract
Conditions of Underwriters’ Obligations. The obligations of the Underwriters hereunderUnderwriter to purchase and pay for the Shares, as to the Shares to be delivered at each Time of Deliveryprovided herein, shall be subjectsubject to the accuracy of the representations and warranties of the Company herein contained, in their discretionas of the date hereof and as of the Closing Date, to the condition that all representations and warranties and other absence from any certificates, opinions, written statements or letters furnished to you or to Underwriter’s Counsel pursuant to this Section 6 of any misstatement or omission, to the performance by the Company and of the Selling Stockholders herein are, at and as of such Time of Delivery, true and correct, the condition that the Company and the Selling Stockholders shall have performed all of its and their obligations hereunder theretofore to be performedhereunder, and to each of the following additional conditions:
(a) The Registration Statement shall have become effective and all necessary regulatory or stock exchange approvals shall have been received not later than 5:30 P.M., New York time, on the date of this Agreement, or at such later time and date as shall have been consented to in writing by the Underwriter; if the Company shall have elected to rely upon Rule 430A under the Securities Act, the Prospectus shall have been filed with the Commission in a timely fashion in accordance with Section 4(a) hereof and a form of the Prospectus containing information relating to the description of the Shares and the method of distribution and similar matters shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by period; and, at or prior to the rules and regulations under the Act and in accordance with Section 5(a) hereof; all material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433 under the Act; if the Company has elected to rely upon Rule 462(b) under the Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m., Washington, D.C. time, on the date of this Agreement; Closing Date no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated post-effective amendment thereto or threatened by the Commission; no stop order suspending or preventing the use of the Prospectus, the Pricing Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceedings therefor shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction;.
(b) Xxxxx Xxxxx L.L.P.At the Closing Date you shall have received the favorable written opinions of (i) Camner, Xxxxxxx & Poller, P.A., counsel for the UnderwritersCompany, dated the Closing Date addressed to the Underwriter in the form attached hereto as Annex I and (ii) Xxxxxx Xxxxx & Bockius, special tax counsel for the Company, dated the Closing Date addressed to the Underwriter in the form attached hereto as Annex II.
(c) All proceedings taken in connection with the sale of the Shares as herein contemplated shall be satisfactory in form and substance to the Underwriter and to Underwriter’s Counsel, and the Underwriter shall have received from Underwriter’s Counsel a favorable written opinion, dated as of the Closing Date, with respect to the issuance and sale of the Shares, the Registration Statement, the Prospectus and the Pricing Disclosure Package and such other related matters as the Underwriter may require, and the Company shall have furnished to you Underwriter’s Counsel such written opinion or opinions, dated such Time of Delivery, in form and substance reasonably satisfactory to you, with respect to such matters as you may reasonably request, and such counsel shall have received such papers and information documents as they may reasonably request to enable for the purpose of enabling them to pass upon such matters;
(c) Xxxxxx & Xxxxxx L.L.P., counsel for the Company, shall have furnished to you their written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex II.
(d) Xxxxxxxx X. Xxxxx, General Counsel At the Closing Date you shall have received a certificate of the Chief Executive Officer and Corporate Secretary Chief Financial Officer of the Company, shall have furnished to you his written opinion, dated such Time of Delivery, in form and substance satisfactory to you, the Closing Date to the effect set forth on Annex III.
that (ei) Xxxx Xxxxxxxxxx & Xxxxxxxxx LLP, special Indiana counsel for the Company, shall have furnished to you their written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth on Annex IV.
(f) Xxxxxx LLP, counsel for each of the Selling Stockholders, as indicated in Schedule IIA hereto, shall have furnished to you their written opinion with respect to each of the Selling Stockholders, dated the First Time of Delivery, in form and substance satisfactory to you, to the effect condition set forth in Annex V.
subsection (ga) Such local counsel of this Section 6 has been satisfied, (ii) as you shall reasonably require shall have furnished to you their written opinion with respect to each of the foreign Selling Stockholdersdate hereof and as of the Closing Date, dated the First Time representations and warranties of Delivery, in form and substance satisfactory to you, to the effect Company set forth in Annex VI.
Section 1 hereof are accurate, (hiii) On the date as of the Prospectus at a time prior to the execution of this AgreementClosing Date all agreements, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement conditions and also at each Time of Delivery, UHY, LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) On the date obligations of the Prospectus at a time Company to be performed or complied with hereunder on or prior to the execution of this Agreementthereto have been duly performed or complied with, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, Flackman Xxxxxxx & Xxxxxx, P.A. shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(iiv) Neither the Company nor and the Subsidiaries shall have not sustained since the date of the latest audited financial statements included in the Pricing Prospectus any material loss or interference with its business their respective businesses or properties from fire, explosionflood, flood hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or court any legal or governmental actionproceeding, (v) no stop order suspending the effectiveness of the Registration Statement or decreeany post-effective amendment thereto or the use of the Prospectus, other than as set forth or contemplated in the Pricing Prospectus or any Issuer Free Writing Prospectus has been issued and no proceedings therefor have been initiated or threatened by the Commission, (vi) there are no pro forma or as adjusted financial statements that are required to be included in the Registration Statement and the Pricing Prospectus pursuant to the Rules and Regulations and (iivii) since subsequent to the respective dates as of which information is given in the Registration Statement and the Pricing Prospectus (exclusive of any amendment or supplement thereto) there has not been any material adverse change or any development involving a prospective material adverse change, whether or not arising from transactions in the ordinary course of business, in or affecting (x) the business, condition (financial or otherwise), results of operations, stockholders’ equity, properties or prospects of the Company and the Subsidiaries, taken as a whole; (y) the long-term debt or capital stock of the Company or any of its Subsidiaries; or (z) the Offering or consummation of any of the other transactions contemplated by this Agreement, the Registration Statement and the Pricing Prospectus.
(e) At the time this Agreement is executed and at the Closing Date, you shall have received a comfort letter, from PricewaterhouseCoopers LLP, independent public accountants for the Company, dated, respectively, as of the date of this Agreement and as of the Closing Date addressed to the Underwriter and in form and substance satisfactory to the Underwriter, Underwriter’s Counsel and PricewaterhouseCoopers LLP.
(f) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereto) and the Pricing Prospectus (exclusive of any supplement thereto), there shall not have been any change in the capital stock or long-term debt of the Company or the Subsidiaries any Subsidiary or any change, change or any development involving a prospective change, whether or not arising from transactions in the ordinary course of business, in the business, condition (financial or affecting the general affairsotherwise), management, financial positionresults of operations, stockholders’ equity equity, properties or results of operations prospects of the Company and the Subsidiaries, taken as a whole, including but not limited to the occurrence of any fire, flood, storm, explosion, accident or other than as set forth calamity at any of the properties owned or contemplated in leased by the Pricing ProspectusCompany or any of its Subsidiaries, the effect of which, in any such case described in clause (i) or (ii)above, is is, in the judgment of the Representatives Undewriter, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery Offering on the terms and in the manner contemplated in the Pricing Prospectus;Prospectus (exclusive of any supplement).
(kg) On or after the Applicable Time, there No downgrading shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the NYSE; (ii) a suspension or material limitation in trading in the Company’s securities on the NYSE; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Texas State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States corporate credit rating or the declaration rating accorded the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the United States of a national emergency Securities Act) and no such organization shall have publicly announced that it has under surveillance or war or (v) the occurrence review, with possible negative implications, its rating of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus;Company’s debt securities.
(lh) The Shares to be sold at such Time of Delivery You shall have been received a duly admitted for trading and quotation on the NYSE;
(m) The Company shall have obtained and delivered to the Underwriters executed copies of a lock-up agreement from each person who is a director or executive officer of its directors and executive officers, the Selling Stockholders Company and each other stockholder identified shareholder listed on Schedule IV I hereto, in each case substantially in the form attached hereto as Annex I hereto;III.
(ni) The Company At the Closing Date, the Shares shall have complied with been approved for quotation on the provisions of Section 5(cNASDAQ.
(j) hereof At the Closing Date, the NASD shall have confirmed that it has not raised any objection with respect to the furnishing of prospectuses on the New York Business Day next succeeding the date of this Agreement; and
(o) The Company fairness and the Selling Stockholders shall have furnished or caused to be furnished to you at such Time of Delivery certificates of officers reasonableness of the Company underwriting terms and of the Selling Stockholders, respectively, satisfactory to you as to the accuracy of the representations and warranties of the Company and the Selling Stockholders, respectively, herein at and as of such Time of Delivery, as to the performance by the Company and the Selling Stockholders of all of their respective obligations hereunder to be performed at or prior to such Time of Delivery, and the Company shall have furnished or caused to be furnished certificates as to the matters set forth in subsections (a) of this Section and as to such other matters as you may reasonably requestarrangements.
(pk) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the Closing Date, prevent the issuance or sale of the Shares; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Shares.
(l) The Company shall have furnished the Underwriter and Underwriter’s Counsel with such other certificates, opinions or caused to be other documents as they may have reasonably requested. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as required by this Agreement, or if any of the certificates, opinions, written statements or letters furnished to you at such Time of Delivery a certificate or to Underwriter’s Counsel pursuant to this Section 6 shall not be satisfactory in form and substance to the Underwriter and to Underwriter’s Counsel, all obligations of the Executive Vice PresidentUnderwriter hereunder may be cancelled by the Underwriter at, Chief Financial Officer or at any time prior to, the Closing Date and Treasurer the obligations of the Underwriter to purchase the Shares may be cancelled at, or at any time prior to, the Additional Closing Date. Notice of such cancellation shall be given to the effect that:
(i) He is familiar with the internal accounting records of the CompanyCompany in writing, or by telephone. Any such telephone notice shall be confirmed promptly thereafter in writing.
(ii) He has reviewed the “Recent Developments” section contained in both the Preliminary Prospectus and the Prospectus. The information presented in such Recent Developments section (A) has been prepared in good faith and based upon assumptions that he believes are reasonable and consistent with the operations of the Company and (B) is a fair estimate in all material respects of the Company’s total revenues and net income for the three months ended June 30, 2011 and has been derived from the Company’s accounting and/or financial records.
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