Capital Increase and Initial Subscription. (a) The Company confirms that its board of directors (the “Board”) has, on or prior to the date hereof, taken appropriate resolutions to: (i) increase the Company’s share capital (Erhöhungsbeschluss) by issuing the Initial Securities out of the Company's authorized share capital (the “Initial Capital Increase”); (ii) authorize the execution, delivery and performance of this Agreement and the transactions contemplated herein; (iii) authorize certain members of the Board and the executive committee and/or other persons (each, an “Authorized Signatory”), acting jointly by two, to execute this Agreement and any amendments and supplements thereto. (b) The Company undertakes to cause ▇▇▇▇▇▇▇ Kantonalbank (the “Settlement Agent”) to (i) subscribe for all the Initial Securities at the issue price (Ausgabebetrag) of CHF 0.05 per Initial Security corresponding to the nominal value for each Initial Security, and to deliver the corresponding executed subscription form (Zeichnungsschein) to the Company in the form of Exhibit B hereto in original form (wet-ink signed) by no later than 6:00 a.m. (New York City time) one business day prior to the Closing Time or such other time and date as agreed between the Company and the Representatives, (ii) deposit or cause to be deposited, not later than 6:00 a.m. (New York City time) one business day prior to the Closing Time, or such other date and time as agreed between the Company and the Representatives, same-day funds for value in the amount of CHF 285,750 (the “Firm Capital Increase Amount”) with Credit Suisse (Schweiz) AG (the “Capital Increase Bank”), in a blocked account for such capital increase (Kapitaleinzahlungskonto), made out to the Company’s name, and cause the Capital Increase Bank to issue and deliver to the Company a written confirmation of payment (Kapitaleinzahlungsbestätigung) of the Firm Capital Increase Amount no later than 10:00 a.m. (New York City time) one business day prior to the Closing Time or such other date and time as agreed between the Company and the Representatives; and (iii) take all steps necessary to ensure that at the Closing Time the Initial Securities will be duly onward delivered by the Settlement Agent through the Company’s transfer agent to an account of SVB Securities, acting on behalf of the several Underwriters, at the Depository Trust Company (the “DTC”). (c) Upon receipt of the documents referred to in Section 3(b) and before 3:00 a.m. (New York City time) on the Closing Time, or such other time and date as agreed between the Company and the Representatives, the Board (or a committee or a Board member duly authorized by the Board) will: (i) adopt a report on the Initial Capital Increase (Kapitalerhöhungsbericht) in accordance with Swiss law (article 652e CO); (ii) if statutory preemptive rights of shareholders need to be set aside, procure that a licensed auditor verifies the report on the Initial Capital Increase in accordance with article 652f CO and confirms in writing that it is complete and accurate (Prüfungsbestätigung), in accordance with Swiss law; (iii) resolve in the form of a duly notarized deed on the Initial Capital Increase as set forth in article 652g CO and make all amendments to the articles of association of the Company necessary in connection with the Initial Capital Increase (Feststellungs-und Statutenänderungsbeschluss); and (iv) promptly thereafter, but no later than 4:00 a.m. (New York City time) on the Closing Time, file the documents necessary for the registration of the Initial Capital Increase with the Commercial Register of the Canton of Basel-Stadt; provided, however, that if this Agreement is terminated pursuant to Section 7(q) or Section 11 prior to the Company filing the relevant resolutions with the Commercial Register of the Canton of Basel-Stadt, the Company undertakes not to resolve on the Initial Capital Increase (if it has not already done so) and not to file the relevant resolutions with the Commercial Register of the Canton of Basel-Stadt. (d) Immediately after the registration of the Initial Capital Increase in the Commercial Register of the Canton of Basel-Stadt pursuant to Section 3(c), but in no event later than 9:30 a.m. (New York City time) on the Closing Time, the Company will: (i) deliver by way of email to each of the Representatives, the share registrar of the Company, ▇▇▇▇▇▇▇▇▇ ▇▇ and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇ pdf-copies of (A) the certified extract from the Commercial Register of the Canton of Basel-Stadt confirming that the Initial Capital Increase has been approved by the commercial register (cantonal and federal commercial register), has been registered in the Commercial Register (Tagesregister) and will be published in the Swiss Official Gazette of Commerce, (B) the certified updated articles of association of the Company evidencing the Initial Capital Increase, and (C) a certificate of entry in the Company’s uncertificated securities book (Wertrechtebuch) duly signed by the Company’s share registrar and evidencing the Settlement Agent as first holder of the Initial; (ii) take all steps necessary to ensure that the Initial Securities will be (A) issued to the Settlement Agent, (B) duly recorded as uncertificated securities (Wertrechte) on the books of the Company’s transfer agent and share registrar, (C) delivered on the Closing Time to an account of SVB Securities, acting on behalf of the several Underwriters, at DTC pursuant to Section 3(b)(iii) above, in accordance with the provisions of the Swiss Federal Act on Intermediated Securities, and (D) freely transferable (subject to any applicable restrictions set forth in the articles of association of the Company) on the Closing Time in accordance with the instructions of the Representatives.
Appears in 1 contract
Capital Increase and Initial Subscription. (a) The Company confirms that its board Representatives, acting in their own name but for the accounts of directors (the “Board”) hasseveral Underwriters, agree, on or prior to the date hereofbasis of the representations, taken appropriate resolutions warranties and agreements herein contained, to:
(i) subscribe, on or by 6.00 a.m. (New York City Time) on the Business Day preceding the day the Board shall pass a capital increase the Company’s share capital resolution (Erhöhungsbeschluss) by issuing (the Initial Securities out latter date being the “Underwritten Capital Increase Date,” which is the second Business Day immediately preceding the First Closing Date), or such other time and date as agreed between the Issuer and the Representatives, for all of the Company's authorized share capital (the “Initial Capital Increase”);
(ii) authorize the execution, delivery Underwritten Securities and performance of this Agreement and the transactions contemplated herein;
(iii) authorize certain members of the Board and the executive committee and/or other persons (each, an “Authorized Signatory”), acting jointly by two, to execute this Agreement and any amendments and supplements thereto.
(b) The Company undertakes to cause ▇▇▇▇▇▇▇ Kantonalbank (the “Settlement Agent”) to
(i) subscribe for all the Initial [NUMBER] Option Securities at the issue price (Ausgabebetrag) of CHF 0.05 0.03 per Initial Security corresponding to the nominal value for of each Initial Security, Security and to deliver the corresponding executed subscription form (Zeichnungsschein) to the Company Issuer in the form of Exhibit B hereto A in original form (wet-wet ink signed) by no later than 6:00 6.00 a.m. (New York City time) one business day prior to time on the Closing Time or such other time and date as agreed between the Company and the Representatives,Underwritten Capital Increase Date; and
(ii) deposit or cause to be deposited, not later than 6:00 7:30 a.m. (New York City time) one business day prior to time on the Closing TimeBusiness Day preceding the Underwritten Capital Increase Date, or such other time and date and time as agreed between the Company Issuer and the Representatives, same-day funds in Swiss francs free of bank charges for value in an amount corresponding to the amount aggregate nominal value of CHF 285,750 the Underwritten Securities and [NUMBER] Option Securities (the “Firm Underwritten Capital Increase Amount”) with Credit Suisse (Schweiz) AG UBS AG, Basel, Switzerland (the “Capital Increase Bank”), in a blocked account for such capital increase (Kapitaleinzahlungskonto), IBAN: ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, made out to the CompanyIssuer’s namename (the “Underwritten Capital Increase Account”), and to cause the Capital Increase Bank to issue and deliver to the Company a written confirmation of payment (Kapitaleinzahlungsbestätigung) in original form of the Firm Underwritten Capital Increase Amount to the Issuer no later than 10:00 2:30 a.m. (New York City time) one business day prior to time on the Closing Time Underwritten Capital Increase Date (or such other time and date and time as agreed between the Company Issuer and the Representatives; and
(iii) take all steps necessary to ensure that at the Closing Time the Initial Securities will be duly onward delivered by the Settlement Agent through the Company’s transfer agent to an account of SVB Securities, acting on behalf of the several Underwriters, at the Depository Trust Company (the “DTC”).
(cb) Upon receipt completion of the documents items referred to in Section 3(b3(a) and before 3:00 in no event later than 6:00 a.m. (New York City time) time on the Closing TimeUnderwritten Capital Increase Date, or such other time and date as agreed between the Company Issuer and the Representatives, the Board (or a committee or a Board member duly authorized by the Board) will:
(i) adopt pass a report on capital increase resolution (Erhöhungsbeschluss) regarding the Initial issuance of the Underwritten Securities and [NUMBER] Option Securities subscribed for pursuant to Section 3(a)(i) (the “Underwritten Capital Increase (Kapitalerhöhungsbericht) in accordance with Swiss law (article 652e COIncrease”);
(ii) if statutory preemptive rights of shareholders need to be set aside, procure that adopt a licensed auditor verifies the report on the Initial Underwritten Capital Increase in accordance with article 652f CO (Kapitalerhöhungsbericht) and confirms in writing that it is complete and accurate take note of the auditors’ report (Prüfungsbestätigung), all in accordance with Swiss statutory law;
(iii) resolve in the form of a duly notarized deed on the Initial Underwritten Capital Increase as set forth in article 652g CO and make all amendments to the articles of association of the Company Issuer necessary in connection with the Initial Underwritten Capital Increase (Feststellungs-Feststellungs- und Statutenänderungsbeschluss); and
(iv) promptly thereafter, but no later than 4:00 a.m. (New York City time) on the Closing Time, file the documents necessary for the registration of the Initial Underwritten Capital Increase with the Commercial Register of the Canton of Basel-Stadt; provided, however, that if this Underwriting Agreement is terminated pursuant to Section 7(q) or Section 11 10 prior to the Company Issuer filing the relevant resolutions with the Commercial Register of the Canton of Basel-Stadt, (a) the Company Issuer undertakes not to resolve on the Initial Underwritten Capital Increase (if it has not already done so) and not or to file the relevant resolutions with the Commercial Register of the Canton of Basel-Stadt, and (b) the Issuer shall immediately cause the Capital Increase Bank to release the Underwritten Capital Increase Amount in full to the Representatives, acting for the accounts of the several Underwriters, as soon as practicable; and the Underwriters understand that the Capital Increase Bank may require confirmation, including from the Underwriters, to release the Underwritten Capital Increase Amount and the Underwriters agree to deliver such confirmation.
(dc) Immediately after the registration of the Initial Underwritten Capital Increase in the Commercial Register of the Canton of Basel-Stadt pursuant to Section 3(c3(b), but in no event later than 9:30 6:00 a.m. (New York City time) time on the Closing TimeBusiness Day following the Underwritten Capital Increase Date, the Company Issuer will:
(i) deliver by way of email to each of the Representatives, the Capital Increase Bank and the share registrar of the CompanyIssuer, ▇▇▇▇▇▇▇▇▇ ▇▇ and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇ pdf-copies (a) a copy of (A) the certified extract excerpt of the journal entry (Tagebuch) or a copy of the certified excerpt from the Commercial Register of the Canton of Basel-Stadt confirming that evidencing the Initial Underwritten Capital Increase has been approved by the commercial register (cantonal and federal commercial register), has been registered in the Commercial Register (Tagesregister) and will be published in the Swiss Official Gazette of CommerceIncrease, (Bb) a copy of the certified updated articles of association of the Company Issuer evidencing the Initial Underwritten Capital Increase, and (Cc) a certificate copy of entry in the CompanyIssuer’s book of uncertificated securities book (Wertrechtebuch) duly signed by the Company’s share registrar and evidencing the Settlement Agent Underwriters as first holder holders of the Initial;Underwritten Securities, and (d) a copy of the share register (Aktienbuch) of the Issuer evidencing the Underwriters as shareholders with respect to the Underwritten Securities; and
(ii) take all steps necessary to ensure that the Initial Underwritten Securities will be (A) issued to the Settlement Agent, (Ba) duly recorded as uncertificated securities (Wertrechte) on the books of the Company’s transfer agent and share registrar, (C) delivered on the Closing Time to in an account of SVB Securities, acting on behalf of the several Underwriters, Underwriters at DTC pursuant to Section 3(b)(iii) above, in accordance with on the provisions of the Swiss Federal Act on Intermediated Securities, First Closing Date; and (Db) freely transferable (subject to any applicable restrictions set forth in the articles of association of the CompanyIssuer) on the First Closing Time Date.
(d) The funds deposited in accordance with the instructions Underwritten Capital Increase Account, shall, upon registration of the Underwritten Capital Increase pursuant to Section 3(b) and upon request by the Representatives, be transferred to a separate account of the Issuer with [●] and shall, in such case, remain so deposited for the account of the Issuer until the earlier of:
(i) the issuance of the Underwritten Securities to the Underwriters as set forth in Section 3(c) on the First Closing Date; and
(ii) the date of receipt by the Representatives on behalf of the several Underwriters of the proceeds of (A) the sale of the Underwritten Securities as set forth in Sections 11(b), 11(c) or 11(e) or (B) the Capital Reduction as set forth in Section 11(d), as the case may be. Any fees payable to the Capital Increase Bank for any transfer of the funds deposited in the Underwritten Capital Increase Account pursuant to this Section 3(d) shall be payable directly to the Capital Increase Bank by the Issuer.
Appears in 1 contract