Conditions of the Initial Purchasers’ Obligations. The several obligations of the Initial Purchasers hereunder are subject to the accuracy of the representations and warranties on the part of the Company on the date hereof, at the time of purchase and, if applicable, at the additional time of purchase, the performance by the Company of its obligations hereunder and to the following additional conditions 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 ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Company, addressed to the Representatives, and dated the time of purchase or the additional time of purchase, as the case may be, with executed copies for each Representative, and in form and substance satisfactory to the Representatives, in the form set forth in Exhibit B hereto. (b) The Company shall furnish to you at the time of purchase and, if applicable, at the additional time of purchase, an opinion of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Vice President, General Counsel and Secretary of the Company, addressed to the Representatives, and dated the time of purchase or the additional time of purchase, as the case may be, with executed copies for each Representative, and in form and substance satisfactory to the Representatives, in the form set forth in Exhibit C hereto. (c) You shall have received from KPMG LLP letters dated, respectively, the date of this Agreement, the date of the Final Memorandum, the time of purchase and, if applicable, the additional time of purchase, and addressed to the Representatives (with executed copies for each Representative) in the forms satisfactory to the Representatives, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the various financial disclosures relating to the Company and its subsidiaries, including pro forma financial information, contained in the Preliminary Memorandum and the Final Memorandum. (d) You shall have received from PricewaterhouseCoopers LLP letters dated, respectively, the date of this Agreement, the date of the Final Memorandum, the time of purchase and, if applicable, the additional time of purchase, and addressed to the Representatives (with executed copies for each Representative) in the forms satisfactory to the Representatives, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the various financial disclosures relating to IRP and its subsidiaries contained in the Preliminary Memorandum and the Final Memorandum. (e) You shall have received at the time of purchase and, if applicable, at the additional time of purchase, the favorable opinion of Cravath, Swaine & ▇▇▇▇▇ LLP, counsel for the Initial Purchasers, dated the time of purchase or the additional time of purchase, as the case may be, in form and substance reasonably satisfactory to the Representatives. (f) At the time of purchase or additional time of purchase, as applicable, the Preliminary Memorandum, when taken together with Term Sheet, exclusive of any amendment or supplement, shall not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading. (g) The Company will, 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 Accounting Officer, dated the time of purchase or the additional time of purchase, as the case may be, in the form attached as Exhibit D hereto. (h) The Company will, at the time of purchase and, if applicable, at the additional time of purchase, deliver to you a certificate of its Chief Accounting Officer, dated the time of purchase or the additional time of purchase, as the case may be, in the form attached as Exhibit E hereto. (i) You shall have received copies, duly executed by the Company and the other party or parties thereto, of the Indenture. (j) You shall have received each of the signed agreements (“Lock-Up Agreements”), in the form set forth as Exhibit A hereto, of each of its directors and officers (within the meaning of Rule 16a-1(f) under the Exchange Act) named in Exhibit A-1 hereto, and each such Lock-Up Agreement shall be in full force and effect at the time of purchase and the additional time of purchase, as the case may be. (k) The Company shall have furnished to you such other documents and certificates as to the accuracy and completeness of any statement in the Preliminary Memorandum, the Final Memorandum or the Term Sheet as of the time of purchase and, if applicable, the additional time of purchase, as you may reasonably request. (l) The Notes shall be included in the book-entry settlement system of the DTC, subject only to notice of issuance at or prior to the time of purchase. (m) The Shares shall have been approved for quotation on the NASDAQ, subject only to notice of issuance. (n) There shall exist no event or condition which would constitute a default or an event of default under the Notes or the Indenture.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The several obligations of the Initial Purchasers hereunder are subject to the accuracy of the representations and warranties on the part of the Company on the date hereof, at the time of purchase and, if applicable, at the additional time of purchase, the performance by the Company of its obligations hereunder and to the following additional conditions 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 ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Godward Kronish LLP, counsel for the Company, addressed to the RepresentativesInitial Purchasers, and dated the time of purchase or the additional time of purchase, as the case may be, with executed copies for each Representative, and in form and substance satisfactory to the RepresentativesInitial Purchaser, in the form set forth in Exhibit B hereto, with such changes as are acceptable to UBS.
(b) The Company shall furnish to you at the time of purchase and, if applicable, at the additional time of purchase, a letter of ▇▇▇▇▇▇ Godward Kronish LLP, counsel for the Company, addressed to the Initial Purchasers, and dated the time of purchase or the additional time of purchase, as the case may be, with executed copies for each Initial Purchaser, in the form set forth in Exhibit C hereto, with such changes as are acceptable to UBS.
(c) The Company shall furnish to you at the time of purchase and, if applicable, at the additional time of purchase, an opinion of ▇▇▇▇▇▇▇▇ & ▇. ▇▇▇▇▇▇▇, Vice PresidentLLP, General Counsel special counsel for the Company with respect to patents and Secretary of the Companyproprietary rights, addressed to the RepresentativesInitial Purchasers, and dated the time of purchase or the additional time of purchase, as the case may be, with executed copies for each Representative, and in form and substance satisfactory to the RepresentativesInitial Purchaser, in the form set forth in Exhibit C D hereto, with such changes as are acceptable to UBS.
(cd) The Company shall furnish to you at the time of purchase and, if applicable, at the additional time of purchase, an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & Dodge LLP, special counsel for the Company with respect to patents and proprietary rights, addressed to the Initial Purchasers, and dated the time of purchase or the additional time of purchase, as the case may be, with executed copies for each Initial Purchaser, in the form set forth in Exhibit E hereto, with such changes as are acceptable to UBS.
(e) The Company shall furnish to you at the time of purchase and, if applicable, at the additional time of purchase, a certificate of ▇▇▇▇▇▇▇ ▇▇▇▇▇, Chief Accounting Officer of the Company, addressed to the Initial Purchasers, and dated the time of purchase or the additional time of purchase, as the case may be, with executed copies for each Initial Purchaser, in the form set forth in Exhibit F hereto, with such changes as are acceptable to UBS.
(f) The Company shall furnish to you at the time of purchase and, if applicable, at the additional time of purchase, a certificate of ▇▇▇▇▇ ▇▇▇▇▇▇, Senior Director, Intellectual Property, of the Company, addressed to the Initial Purchasers, and dated the time of purchase or the additional time of purchase, as the case may be, with executed copies for each Initial Purchaser, in the form set forth in Exhibit G hereto, with such changes as are acceptable to UBS.
(g) You shall have received from KPMG Ernst & Young LLP letters dated, respectively, the date of this Agreement, the date of the Final Memorandum, the time of purchase and, if applicable, the additional time of purchase, and addressed to the Representatives Initial Purchasers (with executed copies for each Representativeof the Initial Purchasers) in the forms satisfactory to the RepresentativesUBS, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to which letters shall cover, without limitation, the various financial disclosures relating to the Company and its subsidiaries, including pro forma financial information, contained or incorporated by reference in the Preliminary Memorandum and the Final Memorandum.
(dh) You shall have received from PricewaterhouseCoopers ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP letters dated, respectively, the date of this Agreement, the date of the Final Memorandum, the time of purchase and, if applicable, the additional time of purchase, and addressed to the Representatives (with executed copies for each Representative) Initial Purchaser in the forms satisfactory to the RepresentativesUBS, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to which letters shall cover, without limitation, the various financial disclosures relating with respect to IRP and its subsidiaries Celunol Corp. contained or incorporated by reference in the Preliminary Memorandum and the Final Memorandum.
(ei) You shall have received at the time of purchase and, if applicable, at the additional time of purchase, the favorable opinion of Cravath, Swaine & ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP, counsel for the Initial PurchasersPurchaser, dated the time of purchase or the additional time of purchase, as the case may be, in form and substance reasonably satisfactory to the RepresentativesUBS.
(fj) No amendment or supplement to the Preliminary Memorandum or the Final Memorandum shall have been made to which you shall have objected in writing.
(k) At the time of purchase or additional time of purchase, as applicable, the Preliminary no Memorandum, when taken together with Term Sheet, exclusive of any and no amendment or supplementsupplement thereto, shall not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading.
(gl) The Company will, 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 Accounting Financial Officer, dated the time of purchase or the additional time of purchase, as the case may be, in the form attached as Exhibit D H hereto.
(h) The Company will, at the time of purchase and, if applicable, at the additional time of purchase, deliver to you a certificate of its Chief Accounting Officer, dated the time of purchase or the additional time of purchase, as the case may be, in the form attached as Exhibit E hereto.
(im) You shall have received copies, duly executed by the Company and the other party or parties thereto, of the IndentureIndenture and the Registration Rights Agreement.
(jn) You shall have received each of the signed agreements (“Lock-Up Agreements”), Agreements referred to in the form set forth as Exhibit A hereto, of each of its directors and officers (within the meaning of Rule 16a-1(fSection 3(dd) under the Exchange Act) named in Exhibit A-1 heretohereof, and each such Lock-Up Agreement shall be in full force and effect at the time of purchase and the additional time of purchase, as the case may be.
(ko) The Company shall have furnished to you such other documents and certificates as to the accuracy and completeness of any statement in the Preliminary Memorandum, Memorandum or the Final Memorandum or the Term Sheet as of the time of purchase and, if applicable, the additional time of purchase, as you may reasonably request.
(lp) The Notes shall be included in the book-entry settlement system of the DTCDTC and designated for trading on PORTAL, subject only to notice of issuance at or prior to the time of purchase.
(mq) The Shares shall have been approved for quotation on the NASDAQ, subject only to notice of issuance.
(nr) There shall exist no event or condition which would constitute a default or an event of default under the Notes or the Indenture.
(s) The Good Standing Filings shall have been duly filed with the Secretary of State of the State of Delaware, and the Company shall be validly existing as a corporation in good standing under the laws of the State of Delaware, with full corporate power and authority to own, lease and operate its properties and conduct its business as described in the Preliminary Memorandum and the Final Memorandum, to execute and deliver this Agreement, the Indenture, the Registration Rights Agreement and the Notes and to issue, sell and deliver the Notes and the Shares issuable upon conversion of the Notes as contemplated by this Agreement, the Indenture, the Registration Rights Agreement and the Notes.
Appears in 1 contract
Sources: Purchase Agreement (Diversa Corp)
Conditions of the Initial Purchasers’ Obligations. The several obligations of the Initial Purchasers hereunder to purchase and pay for the Securities are subject to the continued accuracy, as of the Closing Time, of the representations and warranties of the Issuers herein contained, to the accuracy of the representations and warranties on the part statements of the Company on Issuers and officers of the date Issuers made in any certificate pursuant to the provisions hereof, at the time of purchase and, if applicable, at the additional time of purchase, to the performance by each of the Company Issuers of its obligations hereunder hereunder, and to the following additional conditions precedentfurther conditions:
(a) The Company At the Closing Time, the Initial Purchasers shall furnish to you at have received the time of purchase and, if applicable, at the additional time of purchase, an opinion of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Company, addressed to the Representatives, and dated the time of purchase or the additional time of purchase, as the case may be, with executed copies for each Representative, and in form and substance satisfactory to the Representatives, in the form set forth in Exhibit B hereto.
(b) The Company shall furnish to you at the time of purchase and, if applicable, at the additional time of purchase, an opinion of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Vice PresidentUnited States counsel to the Issuers, General Counsel and Secretary dated as of the Company, addressed to the Representatives, and dated the time of purchase or the additional time of purchase, as the case may be, with executed copies for each Representative, and in form and substance satisfactory to the Representatives, in the form set forth in Exhibit C hereto.
(c) You shall have received from KPMG LLP letters dated, respectively, the date of this Agreement, the date of the Final Memorandum, the time of purchase and, if applicable, the additional time of purchase, and addressed to the Representatives (with executed copies for each Representative) in the forms satisfactory to the Representatives, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the various financial disclosures relating to the Company and its subsidiaries, including pro forma financial information, contained in the Preliminary Memorandum and the Final Memorandum.
(d) You shall have received from PricewaterhouseCoopers LLP letters dated, respectively, the date of this Agreement, the date of the Final Memorandum, the time of purchase and, if applicable, the additional time of purchase, and addressed to the Representatives (with executed copies for each Representative) in the forms satisfactory to the Representatives, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the various financial disclosures relating to IRP and its subsidiaries contained in the Preliminary Memorandum and the Final Memorandum.
(e) You shall have received at the time of purchase and, if applicable, at the additional time of purchase, the favorable opinion of Cravath, Swaine & ▇▇▇▇▇ LLP, counsel for the Initial Purchasers, dated the time of purchase or the additional time of purchase, as the case may beClosing Time, in form and substance reasonably satisfactory to the Representatives.Initial Purchasers and counsel for the Initial Purchasers, to the effect that:
(f1) At no consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body in the time United States of purchase America or additional time the State of purchaseNew York is required for the execution and delivery by the Company and the LLC, as applicable, of the Preliminary Purchase Agreement, the Equity Registration Rights Agreement, the Notes Registration Rights Agreement, the Agency Agreement, the Escrow Agreement, the Unit Agreement, the Company-LLC Subscription Agreement or the Indenture or for the issuance, sale and delivery of the Notes pursuant to the Purchase Agreement, the issuance and delivery of the Exchange Notes or the Private Exchange Notes, if any, in exchange for the Notes in the manner contemplated by the Notes Registration Rights Agreement, or the consummation by the Company and the LLC, as applicable, of any of the transactions contemplated in such instruments and agreements, or the issuance, sale and delivery of the Holding Shares by the LLC pursuant to the Purchase Agreement (except for authorizations required under the securities or Blue Sky laws of certain jurisdictions, as to which we express no opinion) nor will such issuance, sale and delivery of the Securities to the Initial Purchasers or the execution, delivery and performance of such instruments and agreements by the Company and the LLC, as applicable, conflict with, or result in a violation of any of the terms or provisions of, any existing applicable United States Federal or New York State judgment, order or decree which is known to such counsel or any law, rule or regulation, in any such case, of any government, governmental instrumentality or court located in the United States having jurisdiction over the Company or any of its properties or assets, except that (a) the transactions contemplated by the Notes Registration Rights Agreement are subject, to the extent set forth therein, to the registration and other requirements of the Act and the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act") and (b) the transactions contemplated by the Equity Registration Rights Agreement are subject, to the extent set forth therein, to the registration requirements of the Act;
(2) to our knowledge, there is not pending or threatened any action, suit, proceeding, inquiry or investigation to which the Company or the LLC is a party, or to which the property of the Company or the LLC is subject, before or brought by any court or governmental agency or body in the Federal courts of the United States or in any State court in the State of New York, which might reasonably be expected to have or result in a Material Adverse Effect, or which might reasonably be expected to materially and adversely affect the properties or assets thereof or the consummation or performance by the Company or the LLC of its obligations under any of the Operative Documents;
(3) the execution, delivery and performance of the Operative Documents, the issuance by the Company of the Notes, the issuance by the LLC of the Holding Shares and the consummation of the transactions contemplated in the Operative Documents and compliance by the Company and the LLC with their respective obligations under the Operative Documents will not, whether with or without the giving of notice or lapse of time or both, (a) conflict with or constitute a breach of, or a default or otherwise cause or permit any holder of indebtedness of the Company to have a right to require the repurchase, redemption or repayment of any of such indebtedness of the Company or the LLC under or (b) result in the creation or imposition of any lien (other than liens contemplated by the Escrow Agreement), charge or encumbrance upon any property or assets of the Company or the LLC pursuant to any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or any other agreement or instrument, known to us, to which the Company or the LLC is a party or by which either of them may be bound, or to which any of the property or assets of the Company or the LLC is subject, or (c) result in any violation of the provisions of the LLC Agreement, or any applicable New York or Federal law, statute, rule, regulation, judgment, order, writ or decree, known to us, of any government, government instrumentality or court having jurisdiction over the Company or the LLC or any of their respective properties, assets or operations except in the case of (a), (b), or (c) above, such as would not, either singly or in the aggregate, have a Material Adverse Effect;
(4) the Notes are in the form contemplated by the Indenture and assuming that (a) the Company has been duly organized and is validly existing and in good standing under the laws of the Federative Republic of Brazil, (b) the Company has all requisite corporate power and authority to issue, sell and deliver the Notes and the issuance, sale and delivery of the Notes has been duly authorized by all requisite corporate action by the Company, (c) the Company has all requisite corporate power and authority to issue and deliver the Exchange Notes and the Private Exchange Notes in exchange for the Notes in the manner contemplated by the Notes Registration Rights Agreement and such issuance and delivery has been duly authorized by all requisite corporate action of the Company, (d) the Company has all requisite corporate power and authority to execute and deliver the Purchase Agree- ment, the Unit Agreement, the Indenture, the Escrow Agreement, the Agency Agreement, the Notes Registration Rights Agreement, the Equity Registration Rights Agreement and the Company-LLC Subscription Agreement and to perform its obligations thereunder and such execution, delivery and performance has been duly authorized by all requisite corporate action by the Company, (e) the Unit Agreement, the Indenture, the Escrow Agreement, the Agency Agreement, the Notes Registration Rights Agreement, the Equity Registration Rights Agreement and the Company-LLC Subscription Agreement have been duly executed and delivered by the Company, (f) the LLC has all requisite limited liability power and authority to execute and deliver the Unit Agreement, the Company-LLC Subscription Agreement and the Equity Registration Rights Agreement and to perform its obligations thereunder and such execution, delivery and performance has been duly authorized by all requisite limited liability company action by the LLC, (g) the Unit Agreement, the Company-LLC Subscription Agreement and the Equity Registration Rights Agreement have been duly executed and delivered by the LLC, (I) when the Notes are authenticated by the Trustee in accordance with the provisions of the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee) and delivered and paid for in accordance with the terms of this Agreement, registered holders of the Notes will be entitled to the benefits of the Indenture and the Indenture will constitute the valid and binding obligation of the Company enforceable against the Company in accordance with its terms, (II) when the Exchange Notes and the Private Exchange Notes, if any, are authenticated and delivered in exchange for the Notes in the manner contemplated by the Notes Registration Rights Agreement, registered holders of the Exchange Notes and Private Exchange Notes will be entitled to the benefits of the Indenture and will constitute the valid and binding obligations of the Company enforceable against the Company in accordance with their terms, and (III) each of the Unit Agreement, the Indenture, the Escrow Agreement, the Agency Agreement, the Notes Registration Rights Agreement, the Equity Registration Rights Agreement and the Company-LLC Subscription Agreement constitutes a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, and (IV) each of the Unit Agreement, the Company-LLC Subscription Agreement and the Equity Registration Rights Agreement constitutes a valid and binding obligation of the LLC, enforceable against the LLC in accordance with its terms, except, in each case, (x) as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or similar laws affecting the rights and remedies of creditors generally and (y) such counsel need express no opinion concerning the enforceability of, or the enforceability under law under certain circumstances of, the indemnification provisions of Section 4 of the Notes Registration Rights Agreement or Section 5 of the Equity Registration Rights Agreement with respect to a liability where such indemnification is contrary to public policy;
(5) assuming compliance by the Escrow Agent with the terms of the Escrow Agreement, the Escrow Agreement creates a valid perfected security interest in favor of the Trustee in all right, title and interest of the Company in and to the Escrow Account and the Collateral;
(6) the statements in the Offering Memorandum under the headings "Summary -- The Offering," "Description of the Units," "Description of the Notes," "Exchange Offer; Notes Registration Rights" and "Equity Registration and Other Rights," insofar as such statements purport to summarize certain provisions of the Units, the Notes, the Exchange Notes, the Private Exchange Notes, the Indenture, the Notes Registration Rights Agreement and the Equity Registration Rights Agreement, provide a fair summary of such provisions of such agreements and instruments;
(7) assuming the Securities are issued and sold under the circumstances contemplated by this Agreement and the representations and warranties of the Issuers and the Initial Purchasers set forth herein are true and correct, it is not necessary in connection with the offer, sale and delivery of the Securities to the Initial Purchasers and to each Subsequent Purchaser in the manner contemplated by the Purchase Agreement and the Offering Memorandum to register the Securities under the 1933 Act or to qualify the Indenture under the Trust Indenture Act;
(8) assuming the Company invests the net proceeds of the Offering as described under "Use of Proceeds" in the Final Offering Memorandum, when taken together with Term Sheetneither the Company nor the LLC is an "investment company" or an entity "controlled" by an "investment company," as such terms are defined in the Investment Company Act of 1940 (the "Investment Company Act") nor is the Company or the LLC otherwise subject to regulation or registration under the Investment Company Act. In forming the foregoing opinion, exclusive we are not relying on the availability of any amendment exemption under Section 3(c)(1) or supplement3(c)(7) of the Investment Company Act;
(9) the statements in the Offering Memorandum under the caption "Tax Considerations -- United States" fairly summarize the material United States Federal tax consequences of acquiring, owning and disposing of the Units, the Notes, the Exchange Notes and the Holding Shares;
(10) the LLC will be treated for federal income tax purposes as a partnership and, based on the manner in which it intends to limit its business activities and monitor its "qualifying income" for purposes of Section 7704(c) of the Internal Revenue Code of 1986, as amended (the "Code"), it will not be classified as a publicly traded partnership that is treated as a corporation under section 7704(a) of the Code. In addition such counsel shall state that such counsel has participated in conferences with representatives of the Initial Purchasers, officers and other representatives of the Issuers and representatives of the independent certified accountants of the Issuers, at which conferences the contents of the Offering Memorandum and related matters were discussed, and although such counsel has not include verified and does not pass upon or assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Offering Memorandum (except and only to the extent set forth in subclauses (7) and (10) above), on the basis of the foregoing (relying as to materiality to the extent such counsel deems appropriate upon opinions of officers and other representatives of the Issuers), on the basis of the foregoing nothing has come to its attention to cause it to believe that the Offering Memorandum at the date thereof or as of the Closing Time, contained or contains an untrue statement of a material fact or omit 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 are were made, not misleadingmisleading (it being understood that such counsel has not been requested to and does not make any comment with respect to (i) the financial statements, and the notes thereto and related schedules, (ii) other financial or statistical data found in or derivable from the financial, accounting or internal records of the Issuers or (iii) any forward-looking or projected financial or statistical data relating to the Issuers, in each case, included in the Offering Memorandum). In rendering such opinion, such counsel (A) need not express any opinion with regard to the application of laws of any jurisdiction other than the Federal laws of the United States and the laws of the State of New York and (B) may rely as to matters of fact (but not as to legal conclusions), to the extent they deem proper, on certificates of responsible officers of the Issuers and public officials. Such opinion shall not state that it is to be governed or qualified by, or that it is otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991). References to the Offering Memorandum in this Section (a) include any supplement thereto prior to the Closing Time.
(gb) The Company willAt the Closing Time, 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 Accounting Officer, dated the time of purchase or the additional time of purchase, as the case may be, in the form attached as Exhibit D hereto.
(h) The Company will, at the time of purchase and, if applicable, at the additional time of purchase, deliver to you a certificate of its Chief Accounting Officer, dated the time of purchase or the additional time of purchase, as the case may be, in the form attached as Exhibit E hereto.
(i) You Initial Purchasers shall have received copiesthe opinion of Xavier, duly executed by the Company and the other party or parties theretoBernardes, of the Indenture.
(j) You shall have received each of the signed agreements (“Lock-Up Agreements”)Braganca, in the form set forth as Exhibit A hereto, of each of its directors and officers (within the meaning of Rule 16a-1(f) under the Exchange Act) named in Exhibit A-1 hereto, and each such Lock-Up Agreement shall be in full force and effect at the time of purchase and the additional time of purchase, as the case may be.
(k) The Company shall have furnished to you such other documents and certificates as Brazilian counsel to the accuracy and completeness of any statement in the Preliminary MemorandumIssuers, the Final Memorandum or the Term Sheet dated as of the time of purchase andClosing Time, if applicablein form and substance satisfactory to the Initial Purchasers and counsel for the Initial Purchaser, to the additional time of purchase, as you may reasonably request.effect that:
(l1) The Notes shall be included the Company has been duly organized and is a validly existing sociedade anonima in good standing under the laws of the Federative Republic of Brazil, with full corporate power and authority to own, lease and operate its assets and properties and conduct its business currently conducted and as described in the book-entry settlement system Offering Memorandum;
(2) the authorized, issued and outstanding capital stock of the DTCCompany is as set forth in the Offering Memorandum under the subheading "Actual" under the caption "Capitalization" (except that 8,700 additional shares of the Company's redeemable preferred stock were subsequently issued); the Company does not have any subsidiaries;
(a) the Company has the requisite corporate power and authority to issue, subject only to notice of issuance at or prior sell and deliver the Notes pursuant to the time Purchase Agreement and the issuance, sale and delivery of purchase.
(m) The Shares shall the Notes pursuant to the Purchase Agreement have been approved duly authorized by all requisite corporate action by the Company; (b) the Company has all requisite corporate power and authority to issue and deliver the Exchange Notes and the Private Exchange Notes in exchange for quotation on the NASDAQ, subject only to notice of issuance.
(n) There shall exist no event or condition which would constitute a default or an event of default under the Notes or in the Indenture.manner contemplated by the Notes Registration Rights Agreement and such issuance and delivery has been duly authorized by all requisite corporate action by the Company; (c) the Company has the requisite corporate power and authority to issue, sell and deliver the Common Stock pursuant to the Company-LLC Subscription Agreement and th
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The several obligations of the Initial Purchasers hereunder are subject to the accuracy of the representations and warranties on the part of the Company on the date hereof, at the time of purchase andpurchase, as if applicable, at the additional time made on and as of purchasesuch date, the performance by the Company of its obligations hereunder and to the following additional conditions precedent:
(a) No event or condition of a type described in Section 3(x) hereof shall have occurred or shall exist, which event or condition is not described in the Time of Sale Information (excluding any amendment or supplement thereto) and the Offering Memorandum (excluding any amendment or supplement thereto) and the effect of which in the judgment of the Representative makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Securities at the time of purchase on the terms and in the manner contemplated by this Agreement, the Time of Sale Information and the Offering Memorandum.
(b) The Company shall furnish to you at the time of purchase and, if applicable, at the additional time of purchase, an opinion and 10b-5 statement of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Company, addressed to the RepresentativesInitial Purchasers, and dated the time of purchase or the additional time of purchase, as the case may be, with executed copies for each Representative, and Initial Purchaser in form and substance satisfactory to the Representatives, in the form set forth in Exhibit B hereto.
(b) The Company shall furnish to you at the time of purchase and, if applicable, at the additional time of purchase, an opinion of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Vice President, General Counsel and Secretary of the Company, addressed to the Representatives, and dated the time of purchase or the additional time of purchase, as the case may be, with executed copies for each Representative, and in form and substance satisfactory to the Representatives, in the form set forth in Exhibit C hereto.
(c) You shall have received from KPMG LLP letters dated, respectively, the date of this Agreement, the date of the Final Memorandum, the time of purchase and, if applicable, the additional time of purchase, and addressed to the Representatives (with executed copies for each Representative) in the forms satisfactory to the Representatives, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the various financial disclosures relating to the Company and its subsidiaries, including pro forma financial information, contained in the Preliminary Memorandum and the Final Memorandum.
(d) You shall have received from PricewaterhouseCoopers LLP letters dated, respectively, the date of this Agreement, the date of the Final Memorandum, the time of purchase and, if applicable, the additional time of purchase, and addressed to the Representatives (with executed copies for each Representative) in the forms satisfactory to the Representatives, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the various financial disclosures relating to IRP and its subsidiaries contained in the Preliminary Memorandum and the Final Memorandum.
(e) You shall have received at the time of purchase and, if applicable, at the additional time of purchase, the favorable opinion and 10b-5 statement of Cravath, Swaine & ▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, dated the time of purchase or the additional time of purchase, as the case may be, in form and substance reasonably satisfactory to the RepresentativesRepresentative.
(d) You shall have received at the time of purchase an opinion with respect to intellectual property matters of Banner & Witcoff, Ltd., counsel for the Company, dated the time of purchase in form and substance satisfactory to the Representative.
(e) You shall have received at the time of purchase an opinion with respect to intellectual property matters of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Patent Attorney, counsel for the Company, dated the time of purchase in form and substance satisfactory to the Representative.
(f) At You shall have received from Ernst & Young LLP and EisnerAmper LLP letters dated, respectively, the date of this Agreement, the time of purchase or additional time of purchaseand addressed to the Initial Purchaser in the forms satisfactory to the Representative, as applicablewhich letters shall cover, without limitation, the Preliminary Memorandum, when taken together with Term Sheet, exclusive of any amendment or supplement, shall not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, various financial disclosures contained in the light Time of Sale Information and the circumstances under which they are made, not misleadingOffering Memorandum.
(g) The Company will, 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 Accounting Financial Officer, dated the time of purchase or the additional time of purchase, as the case may be, in the form attached as Exhibit D B hereto.
(h) The Company will, at the time of purchase and, if applicable, at the additional time of purchase, deliver to you a certificate of its Chief Accounting Financial Officer, dated the time of purchase or the additional time of purchase, as the case may be, in the form attached as Exhibit E C hereto.
(i) You shall have received copies, duly executed by the Company and the other party or parties thereto, of the Indenture.
(j) You shall have received each of the signed agreements (“Lock-Up Agreements”), Agreements referred to in the form set forth as Exhibit A hereto, of each of its directors and officers (within the meaning of Rule 16a-1(fSection 3(y) under the Exchange Act) named in Exhibit A-1 heretohereof, and each such Lock-Up Agreement shall be in full force and effect at the time of purchase.
(k) You shall have received on and as of the time of purchase satisfactory evidence of the good standing of the Company and its subsidiaries listed on Schedule D hereto in their respective jurisdictions of organization and their good standing as foreign entities in such other jurisdictions as you may reasonably request, in each case in writing or any standard form of telecommunication from the additional appropriate governmental authorities of such jurisdictions.
(l) 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, at the time of purchase, as prevent the case may beissuance or sale of the Securities; and no injunction or order of any federal, state or foreign court shall have been issued that would, at the time of purchase, prevent the issuance or sale of the Securities.
(km) The Securities shall have been made eligible for clearance and settlement through DTC.
(n) The Company shall have furnished to you such other documents and certificates as to the accuracy and completeness of any statement in the Preliminary Offering Memorandum, other Time of Sale Information, any Issuer Written Communication and the Final Offering Memorandum or the Term Sheet as of the time of purchase and, if applicable, the additional time of purchase, as you may reasonably request.
(l) The Notes shall be included in the book-entry settlement system of the DTC, subject only to notice of issuance at or prior to the time of purchase.
(m) The Shares shall have been approved for quotation on the NASDAQ, subject only to notice of issuance.
(no) There shall exist no event or condition which would constitute a default or an event of default under the Notes Securities or the Indenture.
Appears in 1 contract
Sources: Purchase Agreement (Tetralogic Pharmaceuticals Corp)
Conditions of the Initial Purchasers’ Obligations. The several obligations of the Initial Purchasers hereunder are subject to the accuracy of the representations and warranties on the part of the Company on the date hereof, at the time of purchase and, if applicable, at the additional time of purchase, the performance by the Company of its obligations hereunder and to the following additional conditions 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 ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Company, addressed to the RepresentativesInitial Purchasers, and dated the time of purchase or the additional time of purchase, as the case may be, with executed copies for each Representativethe Initial Purchasers, and in form and substance satisfactory to ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the RepresentativesInitial Purchasers, in the form set forth in Exhibit B hereto.
(b) The Company shall furnish to you at the time of purchase and, if applicable, at the additional time of purchase, an opinion a certificate of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇ in his capacity as Senior Vice President, President and General Counsel and Secretary of the Company, addressed to the Representatives, and dated the time of purchase or the additional time of purchase, as the case may be, with executed copies for each Representative, and in form and substance satisfactory to the Representatives, Company in the form set forth in Exhibit C hereto.
(c) You shall have received from KPMG Ernst & Young LLP letters dated, respectively, the date of this Agreement, the date of the Final Memorandum, the time of purchase and, if applicable, the additional time of purchase, and addressed to the Representatives Initial Purchasers (with executed copies for each Representativethe Initial Purchasers) in the forms satisfactory to the Representatives, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the various financial disclosures relating to the Company and its subsidiaries, including pro forma financial information, contained in the Preliminary Memorandum and the Final Memorandumapproved by UBS.
(d) You shall have received from PricewaterhouseCoopers LLP letters dated, respectively, the date of this Agreement, the date of the Final Memorandum, the time of purchase and, if applicable, the additional time of purchase, and addressed to the Representatives (with executed copies for each Representative) in the forms satisfactory to the Representatives, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the various financial disclosures relating to IRP and its subsidiaries contained in the Preliminary Memorandum and the Final Memorandum.
(e) You shall have received at the time of purchase and, if applicable, at the additional time of purchase, the favorable opinion of Cravath, Swaine ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, dated the time of purchase or the additional time of purchase, as the case may be, in form and substance reasonably satisfactory to UBS.
(e) No amendment or supplement to either the RepresentativesPreliminary Memorandum or the Final Memorandum, or any document which upon filing with the Commission would be incorporated by reference in either Memorandum, shall at any time have been made or filed to which you have objected or shall object in writing.
(f) At the time of purchase or the additional time of purchase, as applicablethe case may be, the Preliminary Memorandum, when taken together with Term Sheet, exclusive of any amendment or supplement, Final Memorandum shall not include contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order 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 the time of purchase or the additional time of purchase, as the case may be, (A) 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 and the Subsidiaries taken as a whole shall occur or become known and (B) no transaction which is material and adverse to the Company has been entered into by the Company or any of the Subsidiaries.
(h) The Company will, 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 Accounting Financial Officer, dated the time of purchase or the additional time of purchase, as the case may be, in the form attached as Exhibit D hereto.
(hi) The Company will, at the time of purchase and, if applicable, at the additional time of purchase, deliver to you a certificate of its Chief Accounting Financial Officer, dated the time of purchase or the additional time of purchase, as the case may be, in the form attached as Exhibit E hereto.E.
(ij) You shall have received copies, duly executed by the Company and the other party or parties thereto, of the IndentureIndenture and the Registration Rights Agreement.
(jk) You shall have received each of the signed agreements (“Lock-Up Agreements”), Agreements referred to in the form set forth as Exhibit A hereto, of each of its directors and officers (within the meaning of Rule 16a-1(fSection 3(z) under the Exchange Act) named in Exhibit A-1 heretohereof, and each such Lock-Up Agreement shall be in full force and effect at the time of purchase and the additional time of purchase, as the case may be.
(kl) The Company shall have furnished to you such other documents and certificates as to the accuracy and completeness of any statement in the Preliminary Memorandum, the Final Memorandum or the Term Sheet as of the time of purchase and, if applicable, the additional time of purchase, as you may reasonably request.
(lm) The Notes shall be included in the book-entry settlement system of the DTChave been designated for trading on PORTAL, subject only to notice of issuance at or prior to the time of purchase.
(mn) The Shares Between the time of execution of this Agreement and the time of purchase or additional time of purchase, as the case may be, there shall not have occurred any downgrading, nor shall any notice have been approved for quotation on given of (i) any intended or potential downgrading or (ii) any watch, review or possible change that does not indicate an affirmation or improvement in the NASDAQ, subject only to notice rating accorded any debt securities of issuance.
(nor guaranteed by the Company or any Subsidiary by any “nationally recognized statistical rating organization,” as that term is defined in Rule 436(g)(2) There shall exist no event or condition which would constitute a default or an event of default under the Notes or the IndentureAct.
Appears in 1 contract