Conditions to Obligations. The obligations of the Selling Shareholders to sell the Shares to the Underwriters and the several obligations of the Underwriters to purchase and pay for the Shares on an Applicable Closing Date are subject to the condition that the Share Transfer shall have occurred not later than the Closing Date. (a) The several obligations of the Underwriters are subject to the following further conditions: (i) Subsequent to the execution and delivery of this Agreement and prior to each Applicable Closing Date: (A) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act; and (B) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus. (ii) The Underwriters shall have received on each Applicable Closing Date a certificate, dated such Applicable Closing Date and signed by an executive officer of the Company, to the effect set forth in Section 7(a)(i)(A) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of such Applicable Closing Date and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before such Applicable Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened. (iii) The Underwriters shall have received on each Applicable Closing Date an opinion and letter of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, U.S. counsel for the Company, dated such Applicable Closing Date, in the form attached hereto as Exhibit B and Exhibit C respectively. (iv) The Underwriters shall have received on each Applicable Closing Date an opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, Luxembourg counsel for the Company and Kinove Holdings, dated such Applicable Closing Date, in the form attached hereto as Exhibit D-1 and an opinion of NautaDutilh Avocats Luxembourg S.à ▇.▇., with respect to the Luxco Sellers, in the form attached hereto as Exhibit D-2. (v) The Underwriters shall have received on each Applicable Closing Date an opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, dated such Applicable Closing Date, in the form attached hereto as Exhibit E. (vi) The Underwriters shall have received on each Applicable Closing Date an opinion of the General Counsel of the Company, dated such Applicable Closing Date, in the form attached hereto as Exhibit F. (vii) The Underwriters shall have received on each Applicable Closing Date an opinion of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, dated such Applicable Closing Date, in form and substance reasonably satisfactory to the Underwriters. (viii) The Underwriters shall have received, on each of the date hereof and on each Applicable Closing Date, a letter dated the date hereof or such Applicable Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Ernst & Young GmbH Wirtschaftsprüfungsgesellschaft, independent registered public accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the Time of Sale Prospectus and the Prospectus; provided that the letter delivered on such Applicable Closing Date shall use a “cut-off date” not earlier than three business days prior to such Applicable Closing Date. (ix) The “lock-up” agreements, each substantially in the form of Exhibit A hereto, between you and the officers and directors of the Company and other persons listed on Schedule V hereto, relating to sales and certain other dispositions of Common Shares or Related Securities, delivered to you on or before the date hereof, shall be in full force and effect on the Applicable Closing Date. (x) On the Applicable Closing Date, the Representatives shall receive a written certificate executed by an authorized person of each Selling Shareholder, dated as of such Applicable Closing Date, to the effect that: (A) the representations, warranties and covenants of such Selling Shareholder set forth in Section 2 or 3 of this Agreement, as applicable, are true and correct as of such Applicable Closing Date; and (B) such Selling Shareholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder on or before such Applicable Closing Date. (xi) The Underwriters shall have received, on the Applicable Closing Date, copies of the Custody Agreement entered into by each Luxco Seller and American Stock Transfer & Trust Company, LLC, as Custodian, relating to the Shares to be sold by such Luxco Seller on such Applicable Closing Date, which Custody Agreement shall be in full force and effect.
Appears in 1 contract
Sources: Underwriting Agreement (Orion Engineered Carbons S.A.)
Conditions to Obligations. The obligations of the Selling Shareholders to sell the Shares to the Underwriters and the several obligations of the Underwriters to purchase and pay for the Shares on an Applicable Closing Date are subject to the condition that the Share Transfer shall have occurred not later than the Closing Date.
(a) The several obligations of the Underwriters are subject to the accuracy, on the date hereof and on the Closing Date, of the representations and warranties of the Company contained herein, to the performance by the Company of its obligations hereunder, and to the following further conditions:
(ia) Subsequent to the execution and delivery of this Agreement and prior to each Applicable the Closing Date:
(Ai) there no downgrading shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Securities or any of the other debt securities of or preferred stock issued or guaranteed by the Company or any of its subsidiaries by Voya Holdings Inc. (“Voya Holdings”) by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act; Act and no such organization shall have publicly announced that it has under surveillance or review, or has changed its outlook with respect to, its existing rating of the Securities or of any other debt securities or preferred stock issued or guaranteed by the Company or Voya Holdings (other than an announcement with positive implications of a possible upgrading); and
(Bii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Shares Securities on the terms and in the manner contemplated in the Time of Sale Prospectus.
(iib) The Underwriters shall have received on each Applicable the Closing Date a certificatecertificate of the Company, dated such Applicable the Closing Date and signed by an executive officer of the Company, to the effect set forth in Section 7(a)(i)(A5(a) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of such Applicable the Closing Date and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before such Applicable the Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(iiic) The Underwriters shall have received on each Applicable the Closing Date an opinion and a letter of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Company, dated the Closing Date, to the effect set forth in Annex A.
(d) The Underwriters shall have received on the Closing Date an opinion of ▇▇▇▇▇ ▇▇▇▇▇, Esq., Executive Vice President and Chief Legal Officer of the Company, dated the Closing Date, to the effect set forth in Annex B.
(e) The Underwriters shall have received on the Closing Date an opinion and negative assurance letter of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, U.S. counsel for the Company, dated such Applicable Closing Date, in the form attached hereto as Exhibit B and Exhibit C respectively.
(iv) The Underwriters shall have received on each Applicable Closing Date an opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, Luxembourg counsel for the Company and Kinove Holdings, dated such Applicable Closing Date, in the form attached hereto as Exhibit D-1 and an opinion of NautaDutilh Avocats Luxembourg S.à ▇.▇., with respect to the Luxco Sellers, in the form attached hereto as Exhibit D-2.
(v) The Underwriters shall have received on each Applicable Closing Date an opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, dated such Applicable Closing Date, in the form attached hereto as Exhibit E.
(vi) The Underwriters shall have received on each Applicable Closing Date an opinion of the General Counsel of the Company, dated such Applicable Closing Date, in the form attached hereto as Exhibit F.
(vii) The Underwriters shall have received on each Applicable Closing Date an opinion of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, dated such Applicable the Closing Date, in form and substance with respect to such matters as the Representatives may reasonably satisfactory to the Underwritersrequest.
(viiif) The Underwriters shall have received, on each of the date hereof and on each Applicable the Closing Date, a letter dated the date hereof or such Applicable the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Ernst & Young GmbH WirtschaftsprüfungsgesellschaftLLP, independent registered public accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the Time of Sale Prospectus and the Prospectus; Prospectus; provided that the letter delivered on such Applicable the Closing Date shall use a “cut-off date” not earlier than three business days prior to such Applicable the Closing Date.
(ix) The “lock-up” agreements, each substantially in the form of Exhibit A hereto, between you and the officers and directors of the Company and other persons listed on Schedule V hereto, relating to sales and certain other dispositions of Common Shares or Related Securities, delivered to you on or before the date hereof, shall be in full force and effect on the Applicable Closing Date.
(x) On the Applicable Closing Date, the Representatives shall receive a written certificate executed by an authorized person of each Selling Shareholder, dated as of such Applicable Closing Date, to the effect that:
(A) the representations, warranties and covenants of such Selling Shareholder set forth in Section 2 or 3 of this Agreement, as applicable, are true and correct as of such Applicable Closing Date; and
(B) such Selling Shareholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder on or before such Applicable Closing Date.
(xig) The Underwriters shall have received, on and as of the Applicable Closing Date, copies satisfactory evidence of the Custody Agreement entered into by each Luxco Seller good standing of the Company and American Stock Transfer & Trust Company, LLC, as Custodian, relating its significant subsidiaries in their respective jurisdictions of organization (to the Shares extent that such concept is applicable) and their good standing in such other jurisdictions as the Underwriters may reasonably request, in each case in writing or any standard form of telecommunication, from the appropriate governmental authorities of such jurisdictions, provided that the evidence of good standing for those entities except for the Company may be as of any date from August 27, 2018 through and including the Closing Date.
(h) The Certificate of Designations shall have been executed, acknowledged and filed with the Secretary of State of the State of Delaware and shall have become effective on or before the Closing Date.
(i) On or prior to be sold by such Luxco Seller on such Applicable the Closing Date, which Custody the Company shall have furnished to the Representatives such further certificates and documents as the Representatives may reasonably request. All opinions, letters, certificates and evidence mentioned above or elsewhere in this Agreement shall be deemed to be in full force compliance with the provisions hereof only if they are in the form and effectsubstance reasonably satisfactory to counsel for the Underwriters.
Appears in 1 contract
Conditions to Obligations. The obligations of the Selling Shareholders Underwriters to sell the Shares to the Underwriters and the Purchase Option ---------------------------------------------------------------- Shares. The several obligations of the Underwriters to purchase and pay ------ for the any Option Shares on an Applicable Closing Date are shall be subject to the condition that the Share Transfer shall have occurred not later than the Closing Date.
(a) The several obligations accuracy of the Underwriters are subject representations and warranties of the Company set forth in Section 1 hereof as of the date hereof, to the accuracy of the statements of the officers of the Company made in any certificate given pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder to be performed at or prior to the Option Shares Time of Delivery with respect to such Option Shares, and to the following further additional conditions:
(i) Subsequent No stop order suspending the effectiveness of the Registration Statement shall be in effect at such Option Shares Time of Delivery and no order of the Commission directed to the execution adequacy or accuracy of any document incorporated by reference in the Prospectus shall be in effect at such Option Shares Time of Delivery; no proceedings for any such purpose shall be pending before, or threatened by, the Commission on such date; if the Completed Prospectus, or any supplement thereto or to the Prospectus, is required to be filed with the Commission pursuant to Rule 424(b) of the Regulations, the Completed Prospectus, or any such supplement, shall have been filed in the manner and delivery within the time period required by Rule 424(b) of this Agreement the Regulations and prior the Company shall have provided evidence reasonably satisfactory to each Applicable Closing Date:
the Representatives thereof; and the Representatives shall have received a certificate dated such Option Shares Time of Delivery and signed by an executive officer of the Company to the effect that no such order is in effect and that no proceedings for any such purpose are pending before, or to the knowledge of the Company threatened by, the Commission; (Aii) there shall not have occurred been any downgrading, nor shall any notice have been given change in the matters described in the letter furnished pursuant to Section 6(d) hereof the effect of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible changewhich would, in the rating accorded any opinion of the securities of Representatives, materially and adversely affect the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as market for such term is defined in Section 3(a)(62) of the Exchange Act; and
Option Shares; (Biii) there shall not have occurred any changebeen, since the respective dates as of which information is given in the Registration Statement and the Prospectus (or any development involving a prospective changeamendment or supplement thereto), except as may otherwise be stated in the Registration Statement and the Prospectus (or any amendment or supplement thereto), any material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or operations business prospects of the Company and its subsidiariessubsidiaries taken as a whole; and (iv) the Company and its subsidiaries shall not have any liabilities or obligations, direct or contingent (whether or not in the ordinary course of business), that are material to the Company and its subsidiaries taken as a whole, from that set forth other than those reflected in the Registration Statement or the Prospectus (or any amendment or supplement thereto).
(b) At such Option Shares Time of Sale Prospectus thatDelivery, there shall be in your judgment, is material full force and adverse effect orders of the MPSC authorizing the issuance and that makes it, in your judgment, impracticable to market sale of the Shares Securities on the terms and conditions herein set forth and containing no provisions unacceptable to the Representatives by reason of the fact that they are materially adverse to the Company (it being understood that the MPSC's orders in effect on the manner contemplated in the Time of Sale Prospectusdate hereof contain no such unacceptable provisions).
(iic) The Underwriters At such Option Shares Time of Delivery, the Representatives shall have received on each Applicable Closing Date a certificatefrom ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, dated such Applicable Closing Date ▇▇., Esq., Senior Vice President-- Finance and signed by an executive officer General Counsel of the Company, to the effect set forth in Section 7(a)(i)(A) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of such Applicable Closing Date and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before such Applicable Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(iii) The Underwriters shall have received on each Applicable Closing Date an opinion and letter of ▇▇Winthrop, Stimson, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, U.S. counsel for the Company, dated such Applicable Closing Date, in the form attached hereto as Exhibit B and Exhibit C respectively.
(iv) The Underwriters shall have received on each Applicable Closing Date an opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, Luxembourg counsel for the Company and Kinove Holdings, dated such Applicable Closing Date, in the form attached hereto as Exhibit D-1 and an opinion of NautaDutilh Avocats Luxembourg S.à ▇.▇., with respect to the Luxco Sellers, in the form attached hereto as Exhibit D-2.
(v) The Underwriters shall have received on each Applicable Closing Date an opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, dated such Applicable Closing Date, in the form attached hereto as Exhibit E.
(vi) The Underwriters shall have received on each Applicable Closing Date an opinion of the General Counsel of the Company, dated such Applicable Closing Date, in the form attached hereto as Exhibit F.
(vii) The Underwriters shall have received on each Applicable Closing Date an opinion of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, opinions, dated such Applicable Closing DateOption Shares Time of Delivery, with respect to such Option Shares in substantially the form and substance reasonably satisfactory to the Underwritersprescribed in Exhibits A and B, respectively, hereto.
(viiid) The Underwriters At such Option Shares Time of Delivery, Deloitte & Touche LLP shall have received, on each of the date hereof and on each Applicable Closing Date, a letter dated the date hereof or such Applicable Closing Date, as the case may be, in form and substance satisfactory furnished to the UnderwritersRepresentatives a letter, from Ernst & Young GmbH Wirtschaftsprüfungsgesellschaftdated such Option Shares Time of Delivery, independent registered public accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial effect that the statements and certain financial information contained set forth in the Registration Statementletter furnished pursuant to Section 6(d) hereof are reaffirmed, the Time of Sale Prospectus and the Prospectus; provided except that the letter delivered on such Applicable Closing Date specified date referred to therein shall use be a “cut-off date” date not earlier more than three business five days prior to such Applicable Closing DateOption Shares Time of Delivery.
(ixe) The “lock-up” agreementsAt such Option Shares Time of Delivery, each substantially in the form Representatives shall have received a certificate, dated such Option Shares Time of Exhibit A hereto, between you Delivery and the officers and directors signed by an executive officer of the Company Company, to the effect that (i) the Company's representations and other persons listed on Schedule V heretowarranties set forth in Section 1 hereof are true and correct at and as of such Option Shares Time of Delivery with the same effect as if made at and as of such Option Shares Time of Delivery; provided, relating however, that (A) if any post-effective amendment to sales and certain other dispositions of Common Shares or Related Securities, delivered the Registration Statement shall have been filed subsequent to you on or before the date hereof, the Registration Statement referred to in Section 1(b) hereof shall be in full force and effect on deemed, for the Applicable Closing Date.
(x) On the Applicable Closing Date, the Representatives shall receive a written certificate executed by an authorized person of each Selling Shareholder, dated as purposes of such Applicable Closing Datecertificate, to the effect that:
(A) the representations, warranties include such amendment and covenants of such Selling Shareholder set forth in Section 2 or 3 of this Agreement, as applicable, are true and correct as of such Applicable Closing Date; and
(B) if the Completed Prospectus shall have been filed with the Commission pursuant to Rule 424(b) of the Regulations, the Prospectus referred to in Sections 1(c), (e), (f), (g) and (i) hereof shall be deemed, for the purposes of such Selling Shareholder has complied with certificate, to be the Completed Prospectus, (ii) the Company shall have performed all the agreements and satisfied all the conditions on of its part obligations hereunder to be performed at or satisfied hereunder on or before prior to such Applicable Closing Date.
Option Shares Time of Delivery, (xiiii) The Underwriters if the Company shall have received, on been required to file the Applicable Closing Date, copies Completed Prospectus with the Commission pursuant to Rule 424(b) of the Custody Agreement entered into by each Luxco Seller Regulations, the Company shall have done so and American Stock Transfer & Trust Company, LLC, as Custodian, relating to (iv) the Shares to be sold by such Luxco Seller on such Applicable Closing Date, which Custody Agreement orders described in Section 7(b) hereof shall be in full force and effect.
(f) All legal proceedings to be taken in connection with the issuance and sale of the Securities shall be reasonably satisfactory in form and substance to counsel for the Underwriters.
(g) Subsequent to the date of this Agreement, there shall not have occurred (i) any material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company and its subsidiaries taken as a whole not contemplated by the Prospectus or any amendment or supplement thereto (including the documents incorporated therein by reference at the date thereof) that, in the opinion of the Representatives, would materially, adversely affect the market for the Securities or (ii) any event or development relating to or involving the Company or any officer or director of the Company that, in the opinion of the Company and its counsel or the Representatives and counsel for the Underwriters, requires the making of any addition to or change in the Prospectus or any amendment or supplement thereto in order to state a material fact required by the Act to be stated therein or necessary in order to make the statements therein not misleading, if amending or supplementing the Prospectus to reflect such event or development would, in the opinion of the Representatives, adversely affect the market for the Securities.
(h) Such Option Shares shall have been listed (subject to official notice of issuance) on the NYSE. In case any of the conditions specified above in this Section 7 shall not have been fulfilled at such Option Shares Time of Delivery, this Agreement may be terminated by the Representatives upon notice thereof to the Company at any time at or prior to such Option Shares Time of Delivery. Any such termination shall be without liability of any party to any other party hereunder, except as otherwise provided in Section 5 hereof and provided that the provisions of Sections 1, 5 and 9 hereof shall survive such termination and remain in full force and effect.
Appears in 1 contract
Conditions to Obligations. The obligations obligation of the Selling Shareholders Shareholder to sell the Shares to the Underwriters and the several obligations of the Underwriters to purchase and pay for the Shares on an Applicable the Closing Date are subject to the condition that the Share Transfer Registration Statement shall have occurred become effective not later than 5:00 p.m. (New York City time) on the Closing Date.
(a) date hereof. The several obligations of the Underwriters are subject to the following further conditions:
(ia) 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.
(b) The representations and warranties of the Company and the Selling Shareholder contained in this Agreement shall be true and correct as of the date hereof and as of the Closing Date, and each of the Company and the Selling Shareholder shall have complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date.
(c) Subsequent to the execution and delivery of this Agreement and prior to each Applicable the Closing Date:
(Ai) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction (other than a notice of the a possible changeupgrading), in the rating accorded any of the securities of the Company or any of its subsidiaries or affiliates by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act; Act; and
(Bii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business business, management or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus that, in your judgmentthe judgment of the Representatives, is material and adverse and that makes it, in your judgmentthe judgment of the Representatives, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(iid) The Underwriters shall have received on each Applicable the Closing Date a certificate, dated such Applicable the Closing Date and signed by an executive officer of the Company, to the effect set forth in Section 7(a)(i)(A6(c)(i) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of such Applicable the Closing Date and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before such Applicable the Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(iiie) The Underwriters shall have received on each Applicable the Closing Date an opinion and letter of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, U.S. counsel for the Companya certificate, dated such Applicable the Closing Date and signed by an executive officer of the Selling Shareholder, to the effect that the representations and warranties of the Selling Shareholder contained in this Agreement are true and correct as of the Closing Date and that the Selling Shareholder has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date, in . The officer signing and delivering such certificate may rely upon the form attached hereto best of his or her knowledge as Exhibit B and Exhibit C respectivelyto proceedings threatened.
(ivf) The Underwriters shall have received on each Applicable the Closing Date (i) an opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, Luxembourg counsel for the Company and Kinove Holdings, dated such Applicable Closing Date, in the form attached hereto as Exhibit D-1 and an opinion of NautaDutilh Avocats Luxembourg S.à ▇.▇., with respect to the Luxco Sellers, in the form attached hereto as Exhibit D-2.
(v) The Underwriters shall have received on each Applicable Closing Date an opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, dated such Applicable Closing Date, in the form attached hereto as Exhibit E.
(vi) The Underwriters shall have received on each Applicable Closing Date an opinion of the General Counsel of the Company, dated such Applicable Closing Date, in the form attached hereto as Exhibit F.
(vii) The Underwriters shall have received on each Applicable Closing Date an opinion 10b-5 statement of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, outside counsel for the Company and the Selling Shareholder and (ii) CMS ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, special Scottish counsel for the Selling Shareholder, in each case dated the Closing Date, with respect to such matters and in such form as is reasonably satisfactory to the Representatives. The opinions of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP and CMS ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP described in this Section 6(f) shall be rendered to the Underwriters at the request of the Company or the Selling Shareholder, as the case may be, and shall so state therein.
(g) The Underwriters shall have received on the Closing Date an opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Executive Vice President, General Counsel and Chief Legal Officer of the Company, with respect to such matters and in such form as is reasonably satisfactory to the Representatives.
(h) The Underwriters shall have received on the Closing Date an opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, dated such Applicable the Closing Date, with respect to such matters and in such form and substance as is reasonably satisfactory to the UnderwritersRepresentatives, and the Company and the Selling Shareholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(viiii) The Underwriters shall have received, on each of the date hereof and on each Applicable the Closing Date, a letter dated the date hereof or such Applicable the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Ernst Deloitte & Young GmbH WirtschaftsprüfungsgesellschaftTouche LLP, independent registered public accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the Time of Sale Prospectus and the Prospectus; Prospectus; provided that the letter delivered on such Applicable the Closing Date shall use a “cut-off date” not earlier than three business days prior to such Applicable Closing Datethe date hereof.
(ixj) The “lockLock-up” agreementsUp Agreements, each substantially in the form of Exhibit A hereto, between you and the officers and directors of the Company and other persons listed on Schedule V hereto, IV hereto relating to sales and certain other dispositions of shares of Common Shares Stock or Related Securitiescertain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Applicable Closing Date.
(xk) On The Underwriters shall have received, on each of the Applicable date hereof and the Closing Date, the Representatives shall receive a written certificate executed by an authorized person of each Selling Shareholdercertificate, dated as of such Applicable the date hereof or the Closing Date, as the case may be, and signed by the Chief Financial Officer of the Company with respect to such matters and in such form as is reasonably satisfactory to the effect that:Representatives.
(Al) The Underwriters shall have received such other documents as you may reasonably request with respect to other matters related to the representations, sale of the Shares.
(m) The several obligations of the Underwriters to purchase Additional Shares hereunder are subject to the representations and warranties of the Company and covenants of such the Selling Shareholder set forth contained in Section 2 or 3 of this Agreement, as applicable, are Agreement being true and correct as of such Applicable the date hereof and as of the applicable Option Closing Date; and
(B) such Date, the compliance by each of the Company and the Selling Shareholder has complied with all of the agreements and satisfied satisfaction of all of the conditions on its part to be performed or satisfied hereunder on or before the applicable Option Closing Date and the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate, dated the Option Closing Date and signed by an executive officer of the Company, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Applicable Option Closing Date.;
(xiii) The Underwriters shall have receiveda certificate, dated the Option Closing Date and signed by an executive officer of the Selling Shareholder, confirming that the certificate delivered on the Applicable Closing Date pursuant to Section 6(e) hereof remains true and correct as of such Option Closing Date;
(iii) (i) an opinion and 10b-5 letter of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, copies of outside counsel for the Custody Agreement entered into by Company and the Selling Shareholder, and (ii) CMS ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, special Scottish counsel for the Selling Shareholder, in each Luxco Seller and American Stock Transfer & Trust Company, LLC, as Custodiancase dated the Option Closing Date, relating to the Additional Shares to be sold by such Luxco Seller purchased on such Applicable Option Closing Date and otherwise to the same effect as the opinions required by Section 6(f) hereof;
(iv) an opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Executive Vice President, General Counsel and Chief Legal Officer of the Company, dated the Option Closing Date, which Custody Agreement relating to the Additional Shares to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(g) hereof;
(v) an opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Underwriters, dated the Option Closing Date, relating to the Additional Shares to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(h) hereof;
(vi) a letter dated the Option Closing Date, in form and substance satisfactory to the Underwriters, from Deloitte & Touch LLP, independent public accountants, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(i) hereof; provided that the letter delivered on the Option Closing Date shall be in full force use a “cut-off date” not earlier than three business days prior to such Option Closing Date;
(vii) a certificate, dated the Option Closing Date and effectsigned by the Chief Financial Officer of the Company, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; and
(viii) such other documents as you may commercially reasonably request with respect to other matters related to the sale of the Shares.
Appears in 1 contract
Sources: Underwriting Agreement (Citizens Financial Group Inc/Ri)
Conditions to Obligations. The obligations of the Selling Shareholders Each Dealer Manager's obligation ------------------------- to sell the Shares act as a dealer manager with respect to the Underwriters and the several obligations of the Underwriters to purchase and pay for the Shares on an Applicable Closing Date are Exchange Offer shall at all times be subject to the condition that the Share Transfer shall have occurred not later than the Closing Date.conditions that:
(a) The several obligations All of FPL's representations and warranties contained herein are, and at all times during the Exchange Offer shall be, true and correct in all material respects (except as to representations and warranties made as of a particular date which need be true in all material respects only as of such date), it being understood that a Dealer Manager's performance hereunder at a time when it knew or should have known that any such statement is or may be untrue or incorrect in a material respect shall be without prejudice to that Dealer Manager's right subsequently to cease so to perform by reason of such untruth or incorrectness.
(b) FPL, at all times during the period of the Underwriters are subject Exchange Offer, shall have performed all of its material obligations hereunder and with respect to the following further conditions:Exchange Offer required to have been performed.
(c) No stop order or restraining order shall have been issued and no litigation shall have been commenced or threatened with respect to the Exchange Offer or with respect to any of the transactions in connection with or contemplated by, the Exchange Offer, the Offer Materials, or this Agreement before any agency, court or other governmental body of any jurisdiction which the Dealer Manager, in good faith after consultation with FPL, believes renders it inadvisable for the Dealer Manager to continue to act hereunder.
(d) On the date hereof, the Dealer Managers shall have received (i) Subsequent from each of Steel, Hector & Davis and Reid & Priest LLP, both counsel ▇▇ ▇▇L, ▇▇ ▇▇inion, ▇▇d (ii) a certificate of FPL signed by the President, any Vice President, or the Treasurer of FPL, in each case to the execution effect that, at the Effective Date, the Registration Statement and delivery of this Agreement and prior to each Applicable Closing Date:
(A) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act; and
(B) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, Offer Materials taken together as a whole, from did not, and at the date it is filed with the Commission, the Schedule 13E-4 will not, and at the Closing Date, the Offer Materials taken together as a whole, will 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; provided that set forth the foregoing opinions and representations in the Time of Sale Prospectus that, this subsection (d) shall not apply to statements or omissions made in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Shares on the terms reliance upon and in conformity with information furnished in writing to FPL by or on behalf of any of the manner contemplated Dealer Managers for use in connection with the Time preparation of Sale the Registration Statement or the Prospectus, or to any statements in or omissions from the Statement of Eligibility and Qualification on Form T-1, or amendments thereto, of the Trustee under the Indenture.
(iie) The Underwriters On the Closing Date, the Dealer Managers shall have received (i) from each of Steel Hector & Davis and Reid & Priest LLP, both counsel ▇▇▇ ▇PL, ▇ ▇▇vorab▇▇ ▇pinion, which opinion will not pass on each Applicable compliance with the provisions of the blue sky laws of any jurisdictions, in form and substance reasonably satisfactory to Counsel for the Dealer Managers (ii) from Counsel for the Dealer Managers, an opinion in form and substance reasonably satisfactory to the Dealer Managers, and (iii) from Deloitte & Touche LLP, a letter substantially in the form attached hereto as Exhibit C.
(f) On the Closing Date Date, the Dealer Managers shall have received a certificate, dated such Applicable Closing Date and certificate of FPL signed by an executive officer the President, any Vice President, or the Treasurer of the Company, FPL reasonably satisfactory to the effect set forth in Section 7(a)(i)(A) above and Dealer Managers to the effect that (i) there has been no material adverse change in the business, properties or financial condition of FPL, except as reflected or contemplated in the Registration Statement and Prospectus, (ii) the other representations and warranties on the part of the Company FPL contained in this Agreement are true and correct (with the same force and effect as though expressly made on and at and as of such Applicable the Closing Date and that the Company Date), (iii) FPL has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder under this Agreement on or before such Applicable Closing Date. The officer signing and delivering such certificate may rely upon prior to the best of his or her knowledge as to proceedings threatened.
(iii) The Underwriters shall have received on each Applicable Closing Date an opinion and letter of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, U.S. counsel for the Company, dated such Applicable Closing Date, in the form attached hereto as Exhibit B and Exhibit C respectively.
(iv) The Underwriters shall have received on each Applicable Closing Date an opinion no stop order suspending the effectiveness of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, Luxembourg counsel the Registration Statement (as so amended or supplemented) has been issued and no proceedings for the Company and Kinove Holdings, dated such Applicable Closing Date, in purpose have been initiated or threatened by the form attached hereto as Exhibit D-1 and an opinion of NautaDutilh Avocats Luxembourg S.à ▇Commission.▇., with respect to the Luxco Sellers, in the form attached hereto as Exhibit D-2.
(v) The Underwriters shall have received on each Applicable Closing Date an opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, dated such Applicable Closing Date, in the form attached hereto as Exhibit E.
(vi) The Underwriters shall have received on each Applicable Closing Date an opinion of the General Counsel of the Company, dated such Applicable Closing Date, in the form attached hereto as Exhibit F.
(vii) The Underwriters shall have received on each Applicable Closing Date an opinion of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, dated such Applicable Closing Date, in form and substance reasonably satisfactory to the Underwriters.
(viii) The Underwriters shall have received, on each of the date hereof and on each Applicable Closing Date, a letter dated the date hereof or such Applicable Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Ernst & Young GmbH Wirtschaftsprüfungsgesellschaft, independent registered public accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the Time of Sale Prospectus and the Prospectus; provided that the letter delivered on such Applicable Closing Date shall use a “cut-off date” not earlier than three business days prior to such Applicable Closing Date.
(ix) The “lock-up” agreements, each substantially in the form of Exhibit A hereto, between you and the officers and directors of the Company and other persons listed on Schedule V hereto, relating to sales and certain other dispositions of Common Shares or Related Securities, delivered to you on or before the date hereof, shall be in full force and effect on the Applicable Closing Date.
(x) On the Applicable Closing Date, the Representatives shall receive a written certificate executed by an authorized person of each Selling Shareholder, dated as of such Applicable Closing Date, to the effect that:
(A) the representations, warranties and covenants of such Selling Shareholder set forth in Section 2 or 3 of this Agreement, as applicable, are true and correct as of such Applicable Closing Date; and
(B) such Selling Shareholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder on or before such Applicable Closing Date.
(xi) The Underwriters shall have received, on the Applicable Closing Date, copies of the Custody Agreement entered into by each Luxco Seller and American Stock Transfer & Trust Company, LLC, as Custodian, relating to the Shares to be sold by such Luxco Seller on such Applicable Closing Date, which Custody Agreement shall be in full force and effect.
Appears in 1 contract
Sources: Dealer Managers Agreement (Florida Power & Light Co)
Conditions to Obligations. The of the Company and the ------------------------------------------------ Shareholders. Notwithstanding any other provision of this Agreement, the ------------ obligations of the Selling Company and the Shareholders to sell consummate the Shares to the Underwriters Merger and the several obligations of the Underwriters to purchase and pay for the Shares on an Applicable Closing Date are other transactions contemplated hereby shall be subject to the condition that satisfaction, at or prior to the Share Transfer Closing Date, of the following conditions:
(a) The representations and warranties of ANI and Newco in this Agreement shall be true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and ANI and Newco shall have occurred not later than complied with all covenants and agreements and satisfied all conditions on their part to be performed or satisfied on or prior to the Closing Date.
(ab) The several obligations of the Underwriters are subject to the following further conditions:
(i) Subsequent to the execution and delivery of this Agreement and prior to each Applicable Closing Date:
(A) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act; and
(B) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(ii) The Underwriters shall have received on each Applicable Closing Date a certificatefrom Paul, dated such Applicable Closing Date and signed by an executive officer of the CompanyHastings, to the effect set forth in Section 7(a)(i)(A) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of such Applicable Closing Date and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before such Applicable Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(iii) The Underwriters shall have received on each Applicable Closing Date an opinion and letter of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, U.S. counsel for ANI and Newco, a written opinion dated the Company, dated such Applicable Closing DateDate and addressed to the Company and the Shareholders, in substantially the form attached hereto as Exhibit B and Exhibit C respectively.Annex K hereto. -------
(ivi) The Underwriters shall have received on each Applicable Closing Date an opinion Copies of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇resolutions of the board of directors of ANI authorizing and approving the execution, Luxembourg counsel for delivery and performance of this Agreement and all other documents and instruments to be delivered by ANI pursuant hereto and thereto;
(ii) A certificate of incumbency certifying the names, titles and signatures of the officers authorized to execute the documents referred to in subparagraph (i) above and further certifying that the certificate of incorporation and bylaws of ANI delivered to the Company at the time of, or prior to, the execution of this Agreement have been validly adopted and Kinove Holdings, dated such Applicable Closing Date, in the form attached hereto as Exhibit D-1 have not been amended or modified; and
(iii) Such additional supporting documentation and an opinion of NautaDutilh Avocats Luxembourg S.à ▇.▇., other information with respect to the Luxco Sellers, transactions contemplated hereby as the Company or its counsel may reasonably request.
(d) The Company shall have received a certificate of the President of ANI in substantially the form attached as Annex M hereto. -------
(i) Copies of resolutions of (A) the board of directors of Newco authorizing and approving the execution, delivery and performance of this Agreement and all other documents and instruments to be delivered by Newco pursuant hereto and thereto, and (B) the sole stockholder of Newco approving this Agreement and the Merger;
(ii) A certificate of incumbency certifying the names, titles and signatures of the officers authorized to execute the documents referred to in subparagraph (i) above and further certifying that the certificate of incorporation and bylaws of Newco delivered to the Company at the time of, or prior to, the execution of this Agreement have been validly adopted and have not been amended or modified; and
(iii) Such additional supporting documentation and other information with respect to the transactions contemplated hereby as Exhibit D-2the Company or its counsel may reasonably request.
(vf) The Underwriters Company shall have received on each Applicable Closing Date an opinion a certificate of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, dated such Applicable Closing Date, the President of Newco in substantially the form attached hereto as Exhibit E.Annex O hereto. -------
(vig) The Underwriters ANI shall have received on each Applicable Closing Date an opinion approved and implemented a stock option plan under which the key employees, consultants or advisors of the General Counsel Company will be eligible to participate as of the CompanyClosing, dated such Applicable Closing Date, in the form attached hereto as Exhibit F.
(vii) The Underwriters shall have received on each Applicable Closing Date an opinion of and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & shall have been granted thereunder an option for 200,000 shares vesting over five years at an exercise price equal to the IPO Price.
(h) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLPand an additional non-affiliated individual designated by the Shareholders shall have been elected to the board of directors of ANI.
(i) ANI or Newco shall have assumed all existing contracts with the management, counsel employees, consultants and advisors of the Company and the BPI Note shall have been paid at Closing.
(j) QBI shall have entered into a lease with MRA Associates, LLC, guaranteed by ANI, for a ten-year term and two five-year renewal options which will also provide an option for QBI or ANI to purchase the Underwritersproperties at fair market value, dated such Applicable Closing Datein substantially the form attached hereto as Annex P. Initial ------- annual rent will be $212,000 and the lease will contain a 3% annual cost of living increase adjustment.
(k) No act, event or condition shall have occurred after the date hereof which the Shareholders or the Company determines has had or could reasonably be expected to have a material adverse effect on the business, financial condition, properties, profitability, prospects or operations of ANI.
(l) All corporate and other proceedings and actions taken in connection with the transactions contemplated hereby and all certificates, opinions, agreements, instruments, releases and documents referenced herein or incident to the transactions contemplated hereby shall be in form and substance reasonably satisfactory to the UnderwritersCompany and its counsel.
(viiim) The Underwriters ANI shall have received, on each included in the use of proceeds section of the date hereof and on each Applicable Closing Dateregistration statement for the initial public offering of its Common Stock, a letter dated the date hereof contribution of capital or such Applicable Closing Date, as the case may be, in form and substance satisfactory inter-company loan to the Underwriters, from Ernst & Young GmbH Wirtschaftsprüfungsgesellschaft, independent registered public accountants, containing statements and information Surviving Corporation of the type ordinarily included in accountants’ “comfort letters” up to underwriters with respect $6,000,000 to the financial statements and certain financial information contained in extent required by the Registration Statement, the Time of Sale Prospectus and the Prospectus; provided that the letter delivered on such Applicable Closing Date shall use a “cut-off date” not earlier than three 1998/1999 business days prior to such Applicable Closing Date.
(ix) The “lock-up” agreements, each substantially in the form of Exhibit A hereto, between you and the officers and directors plan of the Company and other persons listed on Schedule V hereto, relating as heretofore provided to sales and certain other dispositions of Common Shares or Related Securities, delivered to you on or before the date hereof, shall be in full force and effect on the Applicable Closing DateANI.
(x) On the Applicable Closing Date, the Representatives shall receive a written certificate executed by an authorized person of each Selling Shareholder, dated as of such Applicable Closing Date, to the effect that:
(A) the representations, warranties and covenants of such Selling Shareholder set forth in Section 2 or 3 of this Agreement, as applicable, are true and correct as of such Applicable Closing Date; and
(B) such Selling Shareholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder on or before such Applicable Closing Date.
(xi) The Underwriters shall have received, on the Applicable Closing Date, copies of the Custody Agreement entered into by each Luxco Seller and American Stock Transfer & Trust Company, LLC, as Custodian, relating to the Shares to be sold by such Luxco Seller on such Applicable Closing Date, which Custody Agreement shall be in full force and effect.
Appears in 1 contract
Conditions to Obligations. The obligations of the Selling Shareholders to sell the Shares to the Underwriters Buyer and the several obligations Transitory Subsidiary. The obligation of each of the Underwriters Buyer and the Transitory Subsidiary to purchase and pay for consummate the Shares on an Applicable Closing Date are Merger is subject to the condition that satisfaction (or waiver by the Share Transfer shall have occurred not later than Buyer) of the Closing Date.following additional conditions:
(a) The several obligations the number of Dissenting Shares shall not exceed 1% of the Underwriters are subject number of outstanding Common Shares as of the Effective Time, and no Preferred Shares shall be Dissenting Shares;
(b) the Company and the Subsidiary shall have obtained at their own expense (and shall have provided copies thereof to the following further conditions:
(iBuyer) Subsequent to the execution and delivery of this Agreement and prior to each Applicable Closing Date:
(A) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction all of the possible changewaivers, in the rating accorded any permits, consents, approvals or other authorizations, and effected all of the securities registrations, filings and notices, referred to in Section 4.2 which are required on the part of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act; andSubsidiary;
(Bc) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(ii) The Underwriters shall have received on each Applicable Closing Date a certificate, dated such Applicable Closing Date and signed by an executive officer of the Company, to the effect set forth in Section 7(a)(i)(A) above and to the effect that the representations and warranties of the Company contained set forth in the first sentence of Section 2.1 and in Section 2.3 and any representations and warranties of the Company set forth in this Agreement that are qualified as to materiality shall be true and correct in all respects, and all other representations and warranties of the Company set forth in this Agreement shall be true and correct in all material respects, in each case as of the date of this Agreement and as of the Closing as though made as of the Closing, except to the extent such representations and warranties are specifically made as of a specified date other than the date of this Agreement or to the extent the representations and warranties set forth in Section 2.2(a), the first sentence of Section 2.2(c), the first sentence of Section 2.14(a), the third sentence of Section 2.20(a) and Section 2.20(c) are specifically made only as of the date of this Agreement (in which case such representations and warranties shall be true and correct as of such Applicable Closing Date and that date);
(d) the Company has shall have performed or complied with in all of the material respects its agreements and satisfied all of the conditions on its part covenants required to be performed or satisfied hereunder on complied with under this Agreement as of or before such Applicable Closing Date. The officer signing and delivering such certificate may rely upon prior to the best Closing;
(e) no Legal Proceeding shall be pending or threatened wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of his the transactions contemplated by this Agreement, (ii) cause the transactions contemplated by this Agreement to be rescinded following consummation or her knowledge as to proceedings threatened.
(iii) The Underwriters have, individually or in the aggregate, a Company Material Adverse Effect, and no such judgment, order, decree, stipulation or injunction shall be in effect;
(f) the Company shall have received on each Applicable Closing Date an opinion delivered to the Buyer and letter of the Transitory Subsidiary the Company Certificate;
(g) all applicable waiting periods (and any extensions thereof) under the H▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLPAct shall have expired or otherwise been terminated;
(h) the Buyer shall have received the resignations, U.S. counsel for effective as of the Closing, of each director and officer of the Company and the Subsidiary (other than any such resignations which the Buyer designates, by written notice to the Company, dated as unnecessary with respect to such Applicable Closing Date, position);
(i) the Buyer shall have received evidence in the form reasonably satisfactory to the Buyer of the termination of each outstanding Option and each outstanding Warrant pursuant to the terms of Section 1.7;
(j) the Buyer shall have received from counsel to the Company opinions in substantially the form attached hereto as Exhibit B A-1 and Exhibit C respectively.A-2, each addressed to the Buyer and dated as of the Closing Date;
(ivk) The Underwriters the Buyer shall have received from each individual listed on each Applicable Closing Date Section 5.2(k) of the Disclosure Schedule an opinion executed copy of ▇▇the Buyer’s Employee Standard Terms agreement in substantially the form attached hereto as Exhibit D (together with the Buyer offer letters for at will employment, the “Employee Agreements”);
(l) the non-competition agreement between the Buyer and J▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, Luxembourg counsel for the Company and Kinove Holdings, dated such Applicable Closing Date, ▇ in the form attached hereto as Exhibit D-1 E and an opinion of NautaDutilh Avocats Luxembourg S.à ▇.▇., with respect to executed on the Luxco Sellers, in the form attached hereto as Exhibit D-2.date hereof shall have become effective;
(vm) The Underwriters the Company shall have terminated its 401(k) Plan;
(n) the Buyer shall have received on each Applicable Closing Date an opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, dated such Applicable Closing Date, in the form attached hereto as Exhibit E.
(vi) The Underwriters shall have received on each Applicable Closing Date an opinion a certificate of the General Counsel Chief Financial Officer of the Company, dated such Applicable in a form acceptable to the Buyer, setting forth the estimated Net Tangible Book Value and the estimated Company Closing Date, in the form attached hereto as Exhibit F.Transaction Expenses; and
(viio) The Underwriters the Buyer shall have received on each Applicable Closing Date an opinion certificates of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, dated such Applicable Closing Date, in form and substance reasonably satisfactory to the Underwriters.
(viii) The Underwriters shall have received, on each of the date hereof and on each Applicable Closing Date, a letter dated the date hereof or such Applicable Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Ernst & Young GmbH Wirtschaftsprüfungsgesellschaft, independent registered public accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the Time of Sale Prospectus and the Prospectus; provided that the letter delivered on such Applicable Closing Date shall use a “cut-off date” not earlier than three business days prior to such Applicable Closing Date.
(ix) The “lock-up” agreements, each substantially in the form of Exhibit A hereto, between you and the officers and directors good standing of the Company and other persons listed on Schedule V heretothe Subsidiary in their jurisdiction of organization and the various foreign jurisdictions in which they are qualified, relating to sales and certain other dispositions of Common Shares or Related Securitiescertified charter documents, delivered to you on or before the date hereof, shall be in full force and effect on the Applicable Closing Date.
(x) On the Applicable Closing Date, the Representatives shall receive a written certificate executed by an authorized person of each Selling Shareholder, dated certificates as of such Applicable Closing Date, to the effect that:
(A) the representations, warranties incumbency of officers and covenants of such Selling Shareholder set forth in Section 2 or 3 of this Agreement, certificates as applicable, are true and correct as of such Applicable Closing Date; and
(B) such Selling Shareholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder on or before such Applicable Closing Date.
(xi) The Underwriters shall have received, on the Applicable Closing Date, copies of the Custody Agreement entered into by each Luxco Seller and American Stock Transfer & Trust Company, LLC, as Custodian, relating to the Shares to be sold by such Luxco Seller on such Applicable Closing Date, which Custody Agreement shall be in full force and effectadoption of authorizing resolutions.
Appears in 1 contract
Sources: Merger Agreement (Doubleclick Inc)
Conditions to Obligations. The obligations of the Selling Shareholders to sell the Shares to the Underwriters Buyer and the several obligations Transitory Subsidiary. -------------------------------------------------------------------- The obligation of each of the Underwriters Buyer and the Transitory Subsidiary to purchase and pay for consummate the Shares on an Applicable Closing Date are Merger is subject to the condition that satisfaction (or waiver by the Share Transfer shall have occurred not later than Buyer) of the Closing Date.following additional conditions:
(a) The several obligations the number of Dissenting Shares shall not exceed 5% of the Underwriters are subject number of outstanding Common Shares as of the Effective Time (calculated after giving effect to the following further conditions:conversion into Common Shares of all outstanding Preferred Shares);
(ib) Subsequent the Company and the Subsidiaries shall have obtained (and shall have provided copies thereof to the execution and delivery of this Agreement and prior to each Applicable Closing Date:
(ABuyer) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction all of the possible changewaivers, in the rating accorded any permits, consents, approvals or other authorizations, and effected all of the securities registrations, filings and notices, referred to in Section 4.2 which are required on the part of the Company or any the Subsidiaries; provided, however, that -------- ------- the telecommunications licenses for Hong Kong, Japan and the United Kingdom shall be excluded from the provisions of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act; andthis paragraph (b);
(Bc) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(ii) The Underwriters shall have received on each Applicable Closing Date a certificate, dated such Applicable Closing Date and signed by an executive officer of the Company, to the effect set forth in Section 7(a)(i)(A) above and to the effect that the representations and warranties of the Company contained set forth in the first sentence of Section 2.1 and in Section 2.3 and any representations and warranties of the Company set forth in this Agreement that are qualified as to materiality shall be true and correct in all respects, and all other representations and warranties of the Company set forth in this Agreement shall be true and correct in all material respects, in each case as of the date of this Agreement and as of the Effective Time as though made as of the Effective Time, except to the extent such representations and warranties are specifically made as of a particular date or as of the date of this Agreement (in which case such representations and warranties shall be true and correct as of such Applicable Closing Date and that date);
(d) the Company has shall have performed or complied with in all of the material respects its agreements and satisfied all of the conditions on its part covenants required to be performed or satisfied hereunder on complied with under this Agreement as of or before such Applicable Closing Date. The officer signing and delivering such certificate may rely upon prior to the best Effective Time;
(e) no Legal Proceeding shall be pending or threatened wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of his any of the transactions contemplated by this Agreement,(ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation or her knowledge as to proceedings threatened.
(iii) The Underwriters have a Company Material Adverse Effect, and no such judgment, order, decree, stipulation or injunction shall be in effect;
(f) the Company shall have delivered to the Buyer and the Transitory Subsidiary a certificate (the "Company Certificate") executed by the Chief Executive Officer and the Chief Financial Officer of the Company to the effect that each of the conditions specified in Section 5.1 and clauses (a) through (e) (insofar as clause (e) relates to Legal Proceedings involving the Company or a Subsidiary) of this Section 5.2 is satisfied in all respects;
(g) Company Stockholders holding, in the aggregate, at least 95% of the Common Shares outstanding immediately prior to the Effective Time shall have executed and delivered to the Buyer an Investment Representation Letter in the form attached hereto as Exhibit E and the Buyer shall have no reason to believe --------- that the statements set forth therein are not true and shall be reasonably satisfied that the issuance and sale of the Merger Shares is exempt from the registration requirements of the Securities Act;
(h) the Buyer shall have received on each Applicable Closing Date an opinion and letter of from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLPLLP and Gray, U.S. counsel for the Company, dated such Applicable Closing Date, in the form attached hereto as Exhibit B and Exhibit C respectively.
(iv) The Underwriters shall have received on each Applicable Closing Date an opinion of ▇▇▇▇▇▇ Harris & ▇▇▇▇▇▇▇▇▇, Luxembourg counsel for P.A. opinions with respect to, in the aggregate, the matters set forth in Exhibit F attached hereto in a form reasonably satisfactory --------- to the Buyer, addressed to the Buyer and dated as of the Closing Date;
(i) the Buyer shall have received copies of the resignations, effective as of the Effective Time, of each director and officer of the Company and Kinove Holdingsthe Subsidiaries (other than any such resignations which the Buyer designates, by written notice to the Company, as unnecessary);
(j) the Buyer shall have received an opinion from ▇▇▇▇ and ▇▇▇▇ LLP, in a form reasonably satisfactory to the Buyer, dated such Applicable the Closing Date, in the form attached hereto as Exhibit D-1 and an opinion of NautaDutilh Avocats Luxembourg S.à ▇.▇., with respect to the Luxco Sellerseffect that the Merger will constitute a reorganization for federal income tax purposes within the meaning of Section 368(a) of the Code; provided that if ▇▇▇▇ and ▇▇▇▇ LLP does not render such opinion, in the form attached hereto as Exhibit D-2.
(v) The Underwriters this condition shall have received on each Applicable Closing Date an opinion of nonetheless be deemed satisfied if ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLPLLP renders such opinion to the Buyer;
(k) the Buyer shall have received such other certificates and instruments(including without limitation certificates of good standing of the Company and the Subsidiaries in their jurisdiction of organization and the various foreign jurisdictions in which they are qualified, dated such Applicable Closing Datecertified charter documents, certificates as to the incumbency of officers and the adoption of authorizing resolutions) as it shall reasonably request in connection with the Closing;
(l) the Buyer shall have received from each of the employees of the Company listed on Exhibit B and from at least 95% of the employees of the --------- Company (not including employees that the Company and the Buyer have agreed will not remain employed with the Surviving Corporation after the Effective Time) an executed Employee Waiver;
(m) the Escrow Agreement shall have been executed and delivered by the parties thereto;
(n) the Buyer and Company Stockholders holding, in the aggregate at least 65% of the outstanding Company Shares (on an as-converted basis) as of the Effective Time shall have executed and delivered a Voting Agreement in the form attached hereto as Exhibit E.G; ---------
(vio) The Underwriters all of the outstanding Warrants shall have been exercised or cancelled;
(p) the Buyer shall have received on each Applicable Closing Date an opinion the audited financial statements of the General Counsel Company as of and for the Companyfiscal year ended December 31, dated such Applicable Closing Date1999, in including the form attached hereto as Exhibit F.unqualified, signed report of Ernst & Young LLP with respect thereto; provided, -------- however, that the report of Ernst & Young LLP may be subject to a going-concern ------- exception;
(viiq) The Underwriters the Buyer shall have received on each Applicable Closing Date an opinion the financial statements of the Company as of and for the six months ended June 30, 2000, which shall have been reviewed by Ernst & Young LLP;
(r) Cisco Systems, Inc. shall have prepared and executed all documentation necessary to release the Cisco Systems Security Interest in all jurisdictions in which it is effective, and shall have placed such documentation in escrow with ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel LLP pursuant to an escrow agreement which provides for the Underwriters, dated such Applicable Closing Date, in form and substance reasonably satisfactory release to the Underwriters.
(viii) The Underwriters shall have receivedSurviving Corporation of such documentation upon the repayment of all outstanding Indebtedness owed by the Surviving Corporation to Cisco Systems, on each Inc., all of which documentation, including without limitation the date hereof and on each Applicable Closing Date, a letter dated the date hereof or such Applicable Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Ernst & Young GmbH Wirtschaftsprüfungsgesellschaft, independent registered public accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the Time of Sale Prospectus and the Prospectus; provided that the letter delivered on such Applicable Closing Date shall use a “cut-off date” not earlier than three business days prior to such Applicable Closing Date.
(ix) The “lock-up” agreements, each substantially in the form of Exhibit A hereto, between you and the officers and directors of the Company and other persons listed on Schedule V hereto, relating to sales and certain other dispositions of Common Shares or Related Securities, delivered to you on or before the date hereofescrow agreement, shall be in full force and effect on a form reasonably acceptable to the Applicable Closing Date.Buyer;
(xs) On the Applicable Closing DateBuyer shall have entered into mutually agreeable employment agreements with each of the employees of the Company listed on Exhibit B. Such --------- agreements shall be for a term of 12 to 18 months, the Representatives shall receive a written certificate executed by an authorized person of each Selling Shareholder, dated provide for salaries at their level as of such Applicable Closing Date, to the effect that:
(A) the representations, warranties and covenants of such Selling Shareholder set forth in Section 2 or 3 date of this Agreement, as applicable, are true and correct shall provide employee benefits substantially similar to those provided to similarly situated employees of the Buyer as of such Applicable Closing Date; the date of this Agreement, and shall contain protective provisions providing for accelerated vesting options upon termination without cause;
(t) the Company shall have filed all federal Tax Returns with respect to its fiscal year ended December 31, 1998 and shall have filed, or filed an extension with respect to, all federal Tax Returns with respect to its fiscal year ended December 31, 1999;
(u) the Shareholders Agreement shall have been amended to provide for its termination upon or prior to the Closing; and
(Bv) such Selling Shareholder has complied with all the agreements Registration Rights Agreement dated November 14, 1997 between the Company and satisfied all Nomura International plc shall have been amended to provide for its termination upon or prior to the conditions on its part to be performed or satisfied hereunder on or before such Applicable Closing Date.Closing; and
(xiw) The Underwriters the Company shall have received, on the Applicable Closing Date, copies received a written waiver from holders of the Custody required percentage of outstanding Series A Convertible Preferred Stock of the Company (as set forth in the Stock Purchase Agreement) irrevocably waiving any and all violations by the Company of Section 7.1 of the Stock Purchase Agreement entered into by each Luxco Seller dated July 6, 1999, between the Company and American Stock Transfer & Trust Company, LLCthe purchasers of Series A Convertible Preferred Stock, as Custodian, relating amended to the Shares to be sold by such Luxco Seller on such Applicable Closing Date, which Custody Agreement shall be in full force and effectdate.
Appears in 1 contract
Conditions to Obligations. The obligations of the Selling Shareholders to sell the Shares to the Underwriters and the several obligations of the Underwriters to purchase and pay for the Shares on an Applicable Closing Date are subject to the condition that the Share Transfer shall have occurred not later than the Closing Date.
(a) The several obligations of the Underwriters are subject to the following further conditions:
(i) Subsequent to the execution and delivery of this Agreement and prior to each Applicable Closing Date:
(A) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act; Act; and
(B) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(ii) The Underwriters shall have received on each Applicable Closing Date a certificate, dated such Applicable Closing Date and signed by an executive officer of the Company, to the effect set forth in Section 7(a)(i)(A) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of such Applicable Closing Date and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before such Applicable Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(iii) The Underwriters shall have received on each Applicable Closing Date an opinion and letter of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, U.S. counsel for the Company, dated such Applicable Closing Date, in the form attached hereto as Exhibit B and Exhibit C respectively.
(iv) The Underwriters shall have received on each Applicable Closing Date an opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, Luxembourg counsel for the Company and Kinove Holdings, dated such Applicable Closing Date, in the form attached hereto as Exhibit D-1 and an opinion of NautaDutilh Avocats Luxembourg S.à ▇.▇., with respect to the Luxco Sellers, in the form attached hereto as Exhibit D-2.
(v) The Underwriters shall have received on each Applicable Closing Date an opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, dated such Applicable Closing Date, in the form attached hereto as Exhibit E.
(vi) The Underwriters shall have received on each Applicable Closing Date an opinion of the General Counsel of the Company, dated such Applicable Closing Date, in the form attached hereto as Exhibit F.
(vii) The Underwriters shall have received on each Applicable Closing Date an opinion of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, dated such Applicable Closing Date, in form and substance reasonably satisfactory to the Underwriters.
(viii) The Underwriters shall have received, on each of the date hereof and on each Applicable Closing Date, a letter dated the date hereof or such Applicable Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Ernst & Young GmbH Wirtschaftsprüfungsgesellschaft, independent registered public accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the Time of Sale Prospectus and the Prospectus; Prospectus; provided that the letter delivered on such Applicable Closing Date shall use a “cut-off date” not earlier than three business days prior to such Applicable Closing Date.
(ix) The “lock-up” agreements, each substantially in the form of Exhibit A hereto, between you and the officers and directors of the Company and other persons listed on Schedule V hereto, relating to sales and certain other dispositions of Common Shares or Related Securities, delivered to you on or before the date hereof, shall be in full force and effect on the Applicable Closing Date.
(x) On the Applicable Closing Date, the Representatives shall receive a written certificate executed by an authorized person of each Selling Shareholder, dated as of such Applicable Closing Date, to the effect that:
(A) the representations, warranties and covenants of such Selling Shareholder set forth in Section 2 or 3 of this Agreement, as applicable, are true and correct as of such Applicable Closing Date; Date; and
(B) such Selling Shareholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder on or before such Applicable Closing Date.
(xi) The Underwriters shall have received, on the Applicable Closing Date, copies of the Custody Agreement entered into by each Luxco Seller and American Stock Transfer & Trust Company, LLC, as Custodian, relating to the Shares to be sold by such Luxco Seller on such Applicable Closing Date, which Custody Agreement shall be in full force and effect.
(xii) The Underwriters shall have received, on each of the date hereof and on each Applicable Closing Date, a certificate of the Chief Financial Officer of the Company, dated the date hereof or such Applicable Closing Date, as the case may be, in the form attached hereto as Exhibit H.
Appears in 1 contract
Sources: Underwriting Agreement (Orion Engineered Carbons S.A.)
Conditions to Obligations. The several obligations of the Selling Shareholders Sellers to sell the Shares to the Underwriters and the several obligations of the Underwriters to purchase and pay for the Shares on an Applicable the Closing Date are subject to the condition that the Share Transfer Registration Statement shall have occurred become effective not later than 5:30 p.m. (New York City time) on the Closing Date.
(a) date hereof. The several obligations of the Underwriters are subject to the following further conditions:
(ia) Subsequent to the execution and delivery of this Agreement and prior to each Applicable the Closing Date:
(Ai) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company's securities of the Company or any of its subsidiaries by any “"nationally recognized statistical rating organization,” " as such term is defined in Section 3(a)(62for purposes of Rule 436(g)(2) of under the Exchange Act; Securities Act; and
(Bii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time Prospectus (exclusive of Sale Prospectus any amendments or supplements thereto subsequent to the date of this Agreement) that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(iib) The Underwriters shall have received on each Applicable the Closing Date a certificate, dated such Applicable the Closing Date and signed by an the chief executive officer or a vice president of the Company and the chief financial officer of the Company, to the effect set forth in Section 7(a)(i)(A6(a)(i) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of such Applicable the Closing Date and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before such Applicable the Closing Date. The officer officers signing and delivering such certificate may each rely upon the best of his or her knowledge as to proceedings threatened.
(iiic) The Underwriters shall have received on each Applicable the Closing Date an opinion and letter of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, U.S. outside counsel for the Company, dated such Applicable the Closing Date, 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 will not contravene, to the best of such counsel's knowledge, any material statute, order, rule or regulation known to such counsel to be generally applicable to transactions of the type contemplated by this Agreement of any federal or state court or governmental agency or body having jurisdiction over the Company or any of its subsidiaries or any of their property or assets, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required under any such statute, order, rule or regulation for the performance by the Company of its obligations under this Agreement, except such as may have been obtained as of the date hereof and such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares;
(ii) the statements (A) in the Prospectus under the captions "Description of Capital Stock" and "Underwriters" and (B) in the Registration Statement in Item 15, in each case insofar as such statements constitute summaries of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings and fairly summarize the matters referred to therein;
(iii) such counsel does not have actual knowledge of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which any of the properties of the Company or any of its subsidiaries is subject that are required to be described in the Registration Statement or the Prospectus and are not so described or of any statutes, regulations, contracts or other documents that are required to be described in the Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement that are not described or filed as required;
(iv) the Company is not, and after giving effect to the offering and sale of the Shares and the application of the proceeds thereof as described in the Prospectus will not be required to register as an "investment company" as such term is defined in the Investment Company Act of 1940, as amended; and
(v) such counsel is of the opinion that (1) each document, if any, filed pursuant to the Exchange Act and incorporated by reference in the Registration Statement and the Prospectus (except for financial statements and schedules and other financial and statistical data included therein as to which such counsel need not express any opinion) complied when so filed as to form attached hereto in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder and (2) the Registration Statement and Prospectus (except for financial statements and schedules and other financial and statistical data included therein as Exhibit B to which such counsel need not express any opinion) comply as to form in all material respects with the Securities Act and Exhibit C respectivelythe applicable rules and regulations of the Commission thereunder. In addition, such counsel shall state that it has no reason to believe that (except for financial statements and schedules and other financial and statistical data as to which such counsel need not express any belief) the Registration Statement and the prospectus included therein at the time the Registration Statement became effective contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading and that it has no reason to believe that (except for financial statements and schedules and other financial and statistical data as to which such counsel need not express any belief) the Prospectus contains any untrue statement of a material fact 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.
(ivd) The Underwriters shall have received on each Applicable the Closing Date an opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇▇▇, Luxembourg in-house counsel for the Company and Kinove HoldingsCompany, dated such Applicable the Closing Date, to the effect that:
(i) the Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the State of Delaware, has the corporate power and authority to own its property and to conduct its business as described in the form attached hereto as Exhibit D-1 Prospectus and an opinion is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of NautaDutilh Avocats Luxembourg S.à ▇.▇.its business or its ownership or leasing of property requires such qualification, with respect except to the Luxco Sellersextent that the failure to be so qualified or be in good standing would not have a material adverse effect on the Company and its subsidiaries, taken as a whole;
(ii) each subsidiary of the Company, other than subsidiaries which, in the aggregate, do not account for more than 10% of any of the total assets, revenues or earnings of the Company in any of the three prior fiscal years, has been duly incorporated or organized, is validly existing as a corporation or partnership in good standing under the laws of the jurisdiction of its incorporation or organization, has the corporate or partnership power and authority to own its property and to conduct its business as described in the Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the Company and its subsidiaries, taken as a whole;
(iii) the authorized capital stock of the Company conforms as to legal matters to the description thereof contained in the Prospectus;
(iv) the shares of Common Stock (including the Shares to be sold by the Selling Stockholders) outstanding prior to the issuance of the Shares to be sold by the Company have been duly authorized and are validly issued, fully paid and non-assessable;
(v) all of the issued shares of capital stock or other equity interests of each subsidiary of the Company have been duly authorized and are validly issued, fully paid and non-assessable and are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims, except for pledges pursuant to the Company's senior credit facility under the terms described in the Prospectus;
(vi) the Shares to be sold by the Company have been duly authorized and, when issued and delivered in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Shares will not be subject to any preemptive or similar rights;
(vii) this Agreement has been duly authorized, executed and delivered by the Company;
(viii) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement will not contravene the certificate of incorporation or by-laws of the Company or, to the best of such counsel's knowledge, any agreement or other instrument binding upon the Company or any of its subsidiaries that is material to the Company and its subsidiaries, taken as a whole, or, to the best of such counsel's knowledge, any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Company or any subsidiary;
(ix) such counsel does not have actual knowledge of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which any of the properties of the Company or any of its subsidiaries is subject that are required to be described in the Registration Statement or the Prospectus and are not so described or of any statutes, regulations, contracts or other documents that are required to be described in the Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement that are not described or filed as required;
(x) such counsel is of the opinion that (1) each document, if any, filed pursuant to the Exchange Act and incorporated by reference in the Registration Statement and the Prospectus (except for financial statements and schedules and other financial and statistical data included therein as to which such counsel need not express any opinion) complied when so filed as to form attached hereto in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder and (2) the Registration Statement and Prospectus (except for financial statements and schedules and other financial and statistical data included therein as Exhibit D-2to which such counsel need not express any opinion) comply as to form in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder. In addition, such counsel shall state that he has no reason to believe that (except for financial statements and schedules and other financial and statistical data as to which such counsel need not express any belief) the Registration Statement and the prospectus included therein at the time the Registration Statement became effective contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading and that he has no reason to believe that (except for financial statements and schedules and other financial and statistical data as to which such counsel need not express any belief) the Prospectus contains any untrue statement of a material fact 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.
(ve) The Underwriters shall have received on the Closing Date an opinion of counsel for each Applicable Selling Stockholder reasonably acceptable to you, dated the Closing Date, to the effect that:
(i) this Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Stockholder;
(ii) the execution and delivery by such Selling Stockholder of, and the performance by such Selling Stockholder of its obligations under, this Agreement and the Custody Agreement and Powers of Attorney of such Selling Stockholder will not contravene any provision of applicable law, or the organizational documents of such Selling Stockholder that is an entity or, to the best of such counsel's knowledge, any agreement or other instrument binding upon such Selling Stockholder or, to the best of such counsel's knowledge, any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Stockholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by such Selling Stockholder of its obligations under this Agreement or the Custody Agreement or Power of Attorney of such Selling Stockholder, except such as may have been obtained as of the date hereof and such as may be required by the securities or Blue Sky laws of the various states in connection with offer and sale of the Shares;
(iii) such Selling Stockholder has valid title to the Shares to be sold by it and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and the Custody Agreement and Power of Attorney of such Selling Stockholder and to sell, transfer and deliver the Shares to be sold by it;
(iv) the Custody Agreement and the Power of Attorney of such Selling Stockholder have been duly authorized, executed and delivered by or on behalf of such Selling Stockholder and are valid and binding agreements of such Selling Stockholder; and
(v) delivery of the Shares to be sold by such Selling Stockholder pursuant to this Agreement will pass title to such Shares free and clear of any security interests, claims, liens, equities and other encumbrances.
(f) The Underwriters shall have received on the Closing Date an opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇, counsel for the Underwriters, dated the Closing Date, covering the matters referred to in Sections 6(d)(vi), 6(d)(vii), 6(c)(ii) (but only as to the statements in the Prospectus under "Description of Capital Stock" and "Underwriters") and 6(c)(v) above. With respect to the last paragraph of Section 6(c) and Section 6(d) above, ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, dated such Applicable Closing Date, in the form attached hereto as Exhibit E.
(vi) The Underwriters shall have received on each Applicable Closing Date an opinion of the General Counsel of the Company, dated such Applicable Closing Date, in the form attached hereto as Exhibit F.
(vii) The Underwriters shall have received on each Applicable Closing Date an opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, dated such Applicable Closing Date, in form and substance reasonably satisfactory to the Underwriters.
(viii) The Underwriters shall have received, on each of the date hereof and on each Applicable Closing Date, a letter dated the date hereof or such Applicable Closing Date, as the case may be, may state that their opinion and belief are based upon their participation in the preparation of the Registration Statement and Prospectus and any amendments or supplements thereto and review and discussion of the contents thereof, but are without independent check or verification, except as specified. With respect to Section 6(e) above, counsel for the Selling Stockholders may rely upon other opinions and, with respect to factual matters and to the extent such counsel deems appropriate, upon the representations of each Selling Stockholder contained herein and in the Custody Agreement and Power of Attorney of such Selling Stockholder and in other documents and instruments; PROVIDED that (A) each such counsel for the Selling Stockholders is satisfactory to your counsel, (B) a copy of each opinion so relied upon is delivered to you and is in form and substance satisfactory to the Underwritersyour counsel, from Ernst & Young GmbH Wirtschaftsprüfungsgesellschaft, independent registered public accountants, containing statements (C) copies of such Custody Agreements and information Powers of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements Attorney and certain financial information contained in the Registration Statement, the Time of Sale Prospectus any such other documents and the Prospectus; provided that the letter delivered on such Applicable Closing Date instruments shall use a “cut-off date” not earlier than three business days prior to such Applicable Closing Date.
(ix) The “lock-up” agreements, each substantially in the form of Exhibit A hereto, between you and the officers and directors of the Company and other persons listed on Schedule V hereto, relating to sales and certain other dispositions of Common Shares or Related Securities, be delivered to you and shall be in form and substance satisfactory to your counsel and (D) counsel shall state in their opinion that they are justified in relying on or before the date hereofeach such other opinion. The opinions described above, other than in Section 6(f), shall be in full force and effect on the Applicable Closing Date.
(x) On the Applicable Closing Date, the Representatives shall receive a written certificate executed by an authorized person of each Selling Shareholder, dated as of such Applicable Closing Date, rendered to the effect that:
(A) the representations, warranties and covenants of such Selling Shareholder set forth in Section 2 or 3 of this Agreement, as applicable, are true and correct as of such Applicable Closing Date; and
(B) such Selling Shareholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder on or before such Applicable Closing Date.
(xi) The Underwriters shall have received, on the Applicable Closing Date, copies of the Custody Agreement entered into by each Luxco Seller and American Stock Transfer & Trust Company, LLC, as Custodian, relating to the Shares to be sold by such Luxco Seller on such Applicable Closing Date, which Custody Agreement shall be in full force and effect.Underwriters
Appears in 1 contract
Sources: Underwriting Agreement (Aftermarket Technology Corp)
Conditions to Obligations. The obligations of the Selling Shareholders to sell the Shares to the Underwriters and the several obligations of the Underwriters to purchase and pay for the Shares on an Applicable Closing Date are subject to the condition that the Share Transfer shall have occurred not later than the Closing Date.
(a) The several obligations of the Underwriters are subject to the following further conditions:
(i) Subsequent to the execution and delivery of this Agreement and prior to each Applicable Closing Date:
(A) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act; Act; and
(B) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(ii) The Underwriters shall have received on each Applicable Closing Date a certificate, dated such Applicable Closing Date and signed by an executive officer of the Company, to the effect set forth in Section 7(a)(i)(A) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of such Applicable Closing Date and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before such Applicable Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(iii) The Underwriters shall have received on each Applicable Closing Date an opinion and letter of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, U.S. counsel for the Company, dated such Applicable Closing Date, in the form attached hereto as Exhibit B and Exhibit C respectively.
(iv) The Underwriters shall have received on each Applicable Closing Date an opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, Luxembourg counsel for the Company and Kinove Holdings, dated such Applicable Closing Date, in the form attached hereto as Exhibit D-1 and an opinion of NautaDutilh Avocats Luxembourg S.à ▇.▇., with respect to the Luxco Sellers, in the form attached hereto as Exhibit D-2.
(v) The Underwriters shall have received on each Applicable Closing Date an opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, dated such Applicable Closing Date, in the form attached hereto as Exhibit E.
(vi) The Underwriters shall have received on each Applicable Closing Date an opinion of the General Counsel of the Company, dated such Applicable Closing Date, in the form attached hereto as Exhibit F.
(vii) The Underwriters shall have received on each Applicable Closing Date an opinion of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, dated such Applicable Closing Date, in form and substance reasonably satisfactory to the Underwriters.
(viii) The Underwriters shall have received, on each of the date hereof and on each Applicable Closing Date, a letter dated the date hereof or such Applicable Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Ernst & Young GmbH Wirtschaftsprüfungsgesellschaft, independent registered public accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the Time of Sale Prospectus and the Prospectus; Prospectus; provided that the letter delivered on such Applicable Closing Date shall use a “cut-off date” not earlier than three business days prior to such Applicable Closing Date.
(ix) The “lock-up” agreements, each substantially in the form of Exhibit A hereto, between you and the officers and directors of the Company and other persons listed on Schedule V hereto, relating to sales and certain other dispositions of Common Shares or Related Securities, delivered to you on or before the date hereof, shall be in full force and effect on the Applicable Closing Date.
(x) On the Applicable Closing Date, the Representatives shall receive a written certificate executed by an authorized person of each Selling Shareholder, dated as of such Applicable Closing Date, to the effect that:
(A) the representations, warranties and covenants of such Selling Shareholder set forth in Section 2 or 3 of this Agreement, as applicable, are true and correct as of such Applicable Closing Date; Date; and
(B) such Selling Shareholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder on or before such Applicable Closing Date.
(xi) The Underwriters shall have received, on the Applicable Closing Date, copies of the Custody Agreement entered into by each Luxco Seller and American Stock Transfer & Trust Company, LLC, as Custodian, relating to the Shares to be sold by such Luxco Seller on such Applicable Closing Date, which Custody Agreement shall be in full force and effect.
Appears in 1 contract
Sources: Underwriting Agreement (Orion Engineered Carbons S.A.)
Conditions to Obligations. The obligations of the Selling Shareholders to sell the Shares to the Underwriters Buyer and the several obligations Transitory Subsidiary. -------------------------------------------------------------------- The obligation of each of the Underwriters Buyer and the Transitory Subsidiary to purchase and pay for consummate the Shares on an Applicable Closing Date are Merger is subject to the condition that satisfaction of the Share Transfer shall have occurred not later than the Closing Date.following additional conditions:
(a) The several obligations the Company and the Subsidiaries shall have obtained all of the Underwriters are subject waivers, permits, consents, approvals or other authorizations, and effected all of the registrations, filings and notices, referred to in Section 4.2 (with respect to the following further conditions:
(i) Subsequent to the execution Company and delivery of this Agreement and prior to each Applicable Closing Date:
(A) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act; andSubsidiaries);
(Bb) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(ii) The Underwriters shall have received on each Applicable Closing Date a certificate, dated such Applicable Closing Date and signed by an executive officer of the Company, to the effect set forth in Section 7(a)(i)(A) above and to the effect that the representations and warranties of the Company contained set forth in this Agreement are Article II shall be true and correct complete when made on the date hereof and shall be true and complete as of the Effective Time as if made as of the Effective Time, except for representations and warranties made as of a specific date, which shall be true and complete as of such Applicable Closing Date date, and that except where failures of representations to be true and complete, individually or in the aggregate, have not had a Company Material Adverse Effect;
(c) the Company has shall have performed or complied with in all of the material respects its agreements and satisfied all of the conditions on its part covenants required to be performed or satisfied hereunder on complied with under this Agreement as of or before such Applicable Closing Date. The officer signing and delivering such certificate may rely upon prior to the best of his or her knowledge as to proceedings threatened.Effective Time;
(iiid) The Underwriters the Company shall have delivered to the Buyer and the Transitory Subsidiary a certificate (without qualification) to the effect that each of the conditions specified in clauses (a)(i), (b) and (d) of Section 5.1 and clauses (a) through (c) of this Section 5.2 is satisfied in all respects;
(e) the Buyer shall have received on each Applicable a "cold comfort" letter dated as of a date not more than two days prior to the date that the Registration Statement is declared effective and shall have received a subsequent similar letter dated as of a date not more than two days prior to the Effective Time, from KPMG Peat Marwick LLP, auditors for the Company, addressed to the Buyer and the Company in a customary form reasonably satisfactory to the Buyer;
(f) the Buyer shall have received a letter from Ernst & Young LLP, auditors for the Buyer, in a form reasonably satisfactory to the Buyer, dated the Closing Date Date, to the effect that the Buyer shall be entitled to treat the Merger as a "pooling of interests" for accounting purposes as provided for in Accounting Principles Board Opinion No. 16 (it is a condition for Ernst & Young LLP to deliver such letter that it receives a letter from KPMG Peat Marwick LLP addressing "pooling of interests" treatment of the Merger);
(g) the Buyer shall have received an opinion and letter of ▇▇▇▇from ▇▇▇▇ & ▇▇▇▇and ▇▇▇▇ LLP, U.S. counsel for in a form reasonably satisfactory to the Buyer, dated the Closing Date, based upon certain factual representations of the Company, dated the Transitory Subsidiary and the Buyer reasonably requested by such Applicable Closing Datecounsel, in to the form attached hereto as Exhibit B and Exhibit C respectively.effect that the Merger will constitute a reorganization for federal income tax purposes within the meaning of Section 368(a) of the Code;
(ivh) all actions to be taken by the Company in connection with the consummation of the transactions contemplated hereby and all certificates, opinions, instruments and other documents required to effect the transactions contemplated hereby shall be reasonably satisfactory in form and substance to the Buyer and the Transitory Subsidiary;
(i) The Underwriters Company Rights Agreement shall have been terminated or the rights under the Company Rights Agreement shall not have become non-redeemable, exercisable, distributed or triggered and (ii) the holders of the Company's capital stock shall have no rights under the Company's Rights Agreement as a result of the transactions contemplated by this Agreement; and
(j) the Buyer and the Transitory Subsidiary shall have received on each Applicable Closing Date from counsel to the Company an opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, Luxembourg counsel for the Company and Kinove Holdings, dated such Applicable Closing Date, in the form attached hereto as Exhibit D-1 and an opinion of NautaDutilh Avocats Luxembourg S.à ▇.▇., with respect to the Luxco Sellersmatters set forth in Exhibit C attached hereto, in addressed to the form attached hereto Buyer and the Transitory Subsidiary --------- and dated as Exhibit D-2.
(v) The Underwriters shall have received on each Applicable Closing Date an opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, dated such Applicable Closing Date, in the form attached hereto as Exhibit E.
(vi) The Underwriters shall have received on each Applicable Closing Date an opinion of the General Counsel of the Company, dated such Applicable Closing Date, in the form attached hereto as Exhibit F.
(vii) The Underwriters shall have received on each Applicable Closing Date an opinion of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, dated such Applicable Closing Date, in form and substance reasonably satisfactory to the Underwriters.
(viii) The Underwriters shall have received, on each of the date hereof and on each Applicable Closing Date, a letter dated the date hereof or such Applicable Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Ernst & Young GmbH Wirtschaftsprüfungsgesellschaft, independent registered public accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the Time of Sale Prospectus and the Prospectus; provided that the letter delivered on such Applicable Closing Date shall use a “cut-off date” not earlier than three business days prior to such Applicable Closing Date.
(ix) The “lock-up” agreements, each substantially in the form of Exhibit A hereto, between you and the officers and directors of the Company and other persons listed on Schedule V hereto, relating to sales and certain other dispositions of Common Shares or Related Securities, delivered to you on or before the date hereof, shall be in full force and effect on the Applicable Closing Date.
(x) On the Applicable Closing Date, the Representatives shall receive a written certificate executed by an authorized person of each Selling Shareholder, dated as of such Applicable Closing Date, to the effect that:
(A) the representations, warranties and covenants of such Selling Shareholder set forth in Section 2 or 3 of this Agreement, as applicable, are true and correct as of such Applicable Closing Date; and
(B) such Selling Shareholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder on or before such Applicable Closing Date.
(xi) The Underwriters shall have received, on the Applicable Closing Date, copies of the Custody Agreement entered into by each Luxco Seller and American Stock Transfer & Trust Company, LLC, as Custodian, relating to the Shares to be sold by such Luxco Seller on such Applicable Closing Date, which Custody Agreement shall be in full force and effect.
Appears in 1 contract
Sources: Merger Agreement (Phamis Inc /Wa/)
Conditions to Obligations. of the Stockholder and the Company. ------------------------------------------------------------ The obligations of the Selling Shareholders Stockholder to sell consummate the Shares to the Underwriters Stock Exchange and the several obligations of the Underwriters to purchase and pay for the Shares on an Applicable Closing Date are transactions contemplated hereby shall be subject to the condition that fulfillment of the Share Transfer shall have occurred not later than following conditions unless waived by the Closing Date.Stockholder:
(a) The several obligations representations and warranties of Buyer set forth in Article III of this Agreement shall be true and correct in all respects as of the Underwriters are subject to the following further conditions:
(i) Subsequent to the execution and delivery date of this Agreement and prior to each Applicable as of the Closing Date as though made on and as of the Closing Date:
, except (A1) there to the extent such representations and warranties are by their express provisions made as of a specified date (which shall not have occurred any downgradingbe true and correct in all respects as of such date) and (2) for the effect of transactions contemplated by this Agreement, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible changeexcept, in each case, where the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act; and
(B) there shall not have occurred any changefailure to be true and correct would not, or any development involving a prospective change, in the condition, financial or otherwise, individually or in the earningsaggregate, business or operations reasonably be expected to interfere with the Stockholder obtaining the benefit of the Company her bargain hereunder, without regard to materiality qualifications in individual representations and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectuswarranties.
(iib) The Underwriters shall have received on each Applicable Closing Date a certificate, dated such Applicable Closing Date A release of Stockholder and signed by an executive officer of the Company, to the effect set forth in Section 7(a)(i)(A) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of such Applicable Closing Date and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before such Applicable Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(iii) The Underwriters shall have received on each Applicable Closing Date an opinion and letter of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, U.S. counsel for the Company, dated such Applicable Closing Date, in the form attached hereto as Exhibit B and Exhibit C respectively.
(iv) The Underwriters shall have received on each Applicable Closing Date an opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, Luxembourg counsel for the Company and Kinove Holdings, dated such Applicable Closing Date, in the form attached hereto as Exhibit D-1 and an opinion of NautaDutilh Avocats Luxembourg S.à ▇.▇., with respect to the Luxco Sellers, in the form attached hereto as Exhibit D-2.
(v) The Underwriters shall have received on each Applicable Closing Date an opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, dated such Applicable Closing Date, in the form attached hereto as Exhibit E.
(vi) The Underwriters shall have received on each Applicable Closing Date an opinion of the General Counsel of the Company, dated such Applicable Closing Date, in the form attached hereto as Exhibit F.
(vii) The Underwriters shall have received on each Applicable Closing Date an opinion of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇ from any personal guarantee for any Company obligation to Centennial Bank.
(c) Buyer shall have performed in all material respects each obligation and agreement and shall have complied in all material respects with each covenant to be performed and complied with by it hereunder at or prior to the Closing Date.
(d) Buyer shall have furnished the Stockholder with a certificate dated the Closing Date signed on behalf of it by its Chairman, President or any Vice President to the effect that the conditions set forth in Sections 5.2(a) and (b) have been satisfied.
(e) Contemporaneously with Closing, the Buyer shall cause the Company to pay the remaining balance due on the two promissory notes dated September 30, 1997 to payable ▇▇▇▇▇▇ LLP, counsel for the Underwriters, dated such Applicable Closing Date, in form ▇. ▇▇▇▇▇▇ and substance reasonably satisfactory to the UnderwritersStockholder.
(viiif) The Underwriters ▇▇▇ ▇▇▇▇▇▇ shall have received, on each of the date hereof entered into an employment and on each Applicable Closing Date, a letter dated the date hereof or such Applicable Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Ernst & Young GmbH Wirtschaftsprüfungsgesellschaft, independent registered public accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters non-compete agreement with respect to the financial statements and certain financial information contained in the Registration Statement, the Time of Sale Prospectus and the Prospectus; provided that the letter delivered on such Applicable Closing Date shall use a “cut-off date” not earlier than three business days prior to such Applicable Closing Date.
(ix) The “lock-up” agreements, each Buyer substantially in the form of attached hereto as Exhibit A hereto, between you and (the officers and directors "Employment Agreement").
(g) Since the date of the Company and other persons listed on Schedule V heretoAgreement, relating there shall not have been any event, occurrence, development or circumstances that individually or in the aggregate had, or reasonably would be expected to sales and certain other dispositions of Common Shares or Related Securitieshave, delivered to you on or before the date hereof, shall be in full force and a material adverse effect on the Applicable Closing Date.
(xi) On Business Condition, financial or otherwise, or the Applicable Closing Dateearnings, the Representatives shall receive a written certificate executed by an authorized person of each Selling Shareholder, dated as of such Applicable Closing Date, to the effect that:
(A) the representations, warranties and covenants of such Selling Shareholder set forth in Section 2 business affairs or 3 of this Agreement, as applicable, are true and correct as of such Applicable Closing Date; and
(B) such Selling Shareholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder on or before such Applicable Closing Date.
(xi) The Underwriters shall have received, on the Applicable Closing Date, copies management of the Custody Agreement entered into by each Luxco Seller and American Stock Transfer & Trust CompanyBuyer, LLC, as Custodian, relating whether or not in the ordinary course of business or (ii) ability of the Buyer to consummate the Shares to be sold by such Luxco Seller on such Applicable Closing Date, which Custody Agreement shall be in full force and effecttransactions contemplated hereby.
Appears in 1 contract
Sources: Stock Purchase Agreement (Sylvan Learning Systems Inc)
Conditions to Obligations. The obligations of the Selling Shareholders Underwriters to sell the Shares to the Underwriters and the Purchase Option ---------------------------------------------------------------- Shares. The several obligations of the Underwriters to purchase and pay for the any ------ Option Shares on an Applicable Closing Date are shall be subject to the condition that the Share Transfer shall have occurred not later than the Closing Date.
(a) The several obligations accuracy of the Underwriters are subject representations and warranties of the Company set forth in Section 1 hereof as of the date hereof, to the accuracy of the statements of the officers of the Company made in any certificate given pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder to be performed at or prior to the Option Shares Time of Delivery with respect to such Option Shares, and to the following further additional conditions:
(i) Subsequent No stop order suspending the effectiveness of the Registration Statement shall be in effect at such Option Shares Time of Delivery and no order of the Commission directed to the execution adequacy or accuracy of any document incorporated by reference in the Prospectus shall be in effect at such Option Shares Time of Delivery; no proceedings for any such purpose shall be pending before, or threatened by, the Commission on such date; if the Completed Prospectus, or any supplement thereto or to the Prospectus, is required to be filed with the Commission pursuant to Rule 424(b) of the Regulations, the Completed Prospectus, or any such supplement, shall have been filed in the manner and delivery within the time period required by Rule 424(b) of this Agreement the Regulations and prior the Company shall have provided evidence reasonably satisfactory to each Applicable Closing Date:
the Representatives thereof; and the Representatives shall have received a certificate dated such Option Shares Time of Delivery and signed by an executive officer of the Company to the effect that no such order is in effect and that no proceedings for any such purpose are pending before, or to the knowledge of the Company threatened by, the Commission; (Aii) there shall not have occurred been any downgrading, nor shall any notice have been given change in the matters described in the letter furnished pursuant to Section 6(d) hereof the effect of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible changewhich would, in the rating accorded any opinion of the securities of Representatives, materially and adversely affect the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as market for such term is defined in Section 3(a)(62) of the Exchange Act; and
Option Shares; (Biii) there shall not have occurred any changebeen, since the respective dates as of which information is given in the Registration Statement and the Prospectus (or any development involving a prospective changeamendment or supplement thereto), except as may otherwise be stated in the Registration Statement and the Prospectus (or any amendment or supplement thereto), any material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or operations business prospects of the Company and its subsidiariessubsidiaries taken as a whole; and (iv) the Company and its subsidiaries shall not have any liabilities or obligations, direct or contingent (whether or not in the ordinary course of business), that are material to the Company and its subsidiaries taken as a whole, from that set forth other than those reflected in the Registration Statement or the Prospectus (or any amendment or supplement thereto).
(b) At such Option Shares Time of Sale Prospectus thatDelivery, there shall be in your judgment, is material full force and adverse effect an order or orders of the MPSC authorizing the issuance and that makes it, in your judgment, impracticable to market sale of the Shares Securities on the terms and conditions herein set forth, and containing no provision unacceptable to the Representatives by reason of the fact that it is materially adverse to the Company (it being understood that no order in effect on the manner contemplated in the Time of Sale Prospectusdate hereof contains any such unacceptable provision).
(iic) The Underwriters At such Option Shares Time of Delivery, the Representatives shall have received on each Applicable Closing Date a certificatefrom ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, dated such Applicable Closing Date ▇▇., Esq., Senior Vice President-- Finance and signed by an executive officer General Counsel of the Company, to the effect set forth in Section 7(a)(i)(A) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of such Applicable Closing Date and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before such Applicable Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(iii) The Underwriters shall have received on each Applicable Closing Date an opinion and letter of ▇▇Winthrop, Stimson, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, U.S. counsel for the Company, dated such Applicable Closing Date, in the form attached hereto as Exhibit B and Exhibit C respectively.
(iv) The Underwriters shall have received on each Applicable Closing Date an opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, Luxembourg counsel for the Company and Kinove Holdings, dated such Applicable Closing Date, in the form attached hereto as Exhibit D-1 and an opinion of NautaDutilh Avocats Luxembourg S.à ▇.▇., with respect to the Luxco Sellers, in the form attached hereto as Exhibit D-2.
(v) The Underwriters shall have received on each Applicable Closing Date an opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, dated such Applicable Closing Date, in the form attached hereto as Exhibit E.
(vi) The Underwriters shall have received on each Applicable Closing Date an opinion of the General Counsel of the Company, dated such Applicable Closing Date, in the form attached hereto as Exhibit F.
(vii) The Underwriters shall have received on each Applicable Closing Date an opinion of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, opinions, dated such Applicable Closing DateOption Shares Time of Delivery, with respect to such Option Shares in substantially the form and substance reasonably satisfactory to the Underwritersprescribed in Exhibits A and B, respectively, hereto.
(viiid) The Underwriters At such Option Shares Time of Delivery, Deloitte & Touche LLP shall have received, on each of the date hereof and on each Applicable Closing Date, a letter dated the date hereof or such Applicable Closing Date, as the case may be, in form and substance satisfactory furnished to the UnderwritersRepresentatives a letter, from Ernst & Young GmbH Wirtschaftsprüfungsgesellschaftdated such Option Shares Time of Delivery, independent registered public accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial effect that the statements and certain financial information contained set forth in the Registration Statementletter furnished pursuant to Section 6(d) hereof are reaffirmed, the Time of Sale Prospectus and the Prospectus; provided except that the letter delivered on such Applicable Closing Date specified date referred to therein shall use be a “cut-off date” date not earlier more than three business five days prior to such Applicable Closing DateOption Shares Time of Delivery.
(ixe) The “lock-up” agreementsAt such Option Shares Time of Delivery, each substantially in the form Representatives shall have received a certificate, dated such Option Shares Time of Exhibit A hereto, between you Delivery and the officers and directors signed by an executive officer of the Company Company, to the effect that (i) the Company's representations and other persons listed on Schedule V heretowarranties set forth in Section 1 hereof are true and correct at and as of such Option Shares Time of Delivery with the same effect as if made at and as of such Option Shares Time of Delivery; provided, relating however, that (A) if any post-effective amendment to sales and certain other dispositions of Common Shares or Related Securities, delivered the Registration Statement shall have been filed subsequent to you on or before the date hereof, the Registration Statement referred to in Section 1(b) hereof shall be in full force and effect on deemed, for the Applicable Closing Date.
(x) On the Applicable Closing Date, the Representatives shall receive a written certificate executed by an authorized person of each Selling Shareholder, dated as purposes of such Applicable Closing Datecertificate, to the effect that:
(A) the representations, warranties include such amendment and covenants of such Selling Shareholder set forth in Section 2 or 3 of this Agreement, as applicable, are true and correct as of such Applicable Closing Date; and
(B) if the Completed Prospectus shall have been filed with the Commission pursuant to Rule 424(b) of the Regulations, the Prospectus referred to in Sections 1(c), (e), (f), (g) and (i) hereof shall be deemed, for the purposes of such Selling Shareholder has complied with certificate, to be the Completed Prospectus, (ii) the Company shall have performed all the agreements and satisfied all the conditions on of its part obligations hereunder to be performed at or satisfied hereunder on or before prior to such Applicable Closing Date.
Option Shares Time of Delivery, (xiiii) The Underwriters if the Company shall have received, on been required to file the Applicable Closing Date, copies Completed Prospectus with the Commission pursuant to Rule 424(b) of the Custody Agreement entered into by each Luxco Seller Regulations, the Company shall have done so and American Stock Transfer & Trust Company, LLC, as Custodian, relating to (iv) the Shares to be sold by such Luxco Seller on such Applicable Closing Date, which Custody Agreement order or orders described in Section 7(b) hereof shall be in full force and effect.
(f) All legal proceedings to be taken in connection with the issuance and sale of the Securities shall be reasonably satisfactory in form and substance to counsel for the Underwriters.
(g) Subsequent to the date of this Agreement, there shall not have occurred (i) any material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company and its subsidiaries taken as a whole not contemplated by the Prospectus or any amendment or supplement thereto (including the documents incorporated therein by reference at the date thereof) that, in the opinion of the Representatives, would materially, adversely affect the market for the Securities or (ii) any event or development relating to or involving the Company or any officer or director of the Company that, in the opinion of the Company and its counsel or the Representatives and counsel for the Underwriters, requires the making of any addition to or change in the Prospectus or any amendment or supplement thereto in order to state a material fact required by the Act to be stated therein or necessary in order to make the statements therein not misleading, if amending or supplementing the Prospectus to reflect such event or development would, in the opinion of the Representatives, adversely affect the market for the Securities.
(h) Such Option Shares shall have been listed (subject to official notice of issuance) on the NYSE. In case any of the conditions specified above in this Section 7 shall not have been fulfilled at such Option Shares Time of Delivery, this Agreement may be terminated by the Representatives upon notice thereof to the Company at any time at or prior to such Option Shares Time of Delivery. Any such termination shall be without liability of any party to any other party hereunder, except as otherwise provided in Section 5 hereof and provided that the provisions of Sections 1, 5, 9 and 14 hereof shall survive such termination and remain in full force and effect.
Appears in 1 contract
Conditions to Obligations. The obligations of the Selling Shareholders to sell the Shares to the Underwriters Buyer and the several obligations Transitory Subsidiary. The obligation of each of the Underwriters Buyer and the Transitory Subsidiary to purchase and pay for consummate the Shares on an Applicable Closing Date are Merger is subject to the condition that satisfaction (or waiver by the Share Transfer shall have occurred not later than Buyer) of the Closing Date.following additional conditions:
(a) The several obligations the Company shall have obtained (and shall have provided copies thereof to the Buyer) all of the Underwriters are subject to the following further conditions:
(i) Subsequent to the execution waivers, permits, consents, approvals or other authorizations, and delivery of this Agreement and prior to each Applicable Closing Date:
(A) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction effected all of the possible changeregistrations, filings and notices, referred to in Section 4.2 which are required on the rating accorded any of the securities part of the Company except if no Company Material Adverse Effect would result from the failure to obtain any such waiver, permit, consent, approval, or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act; andother authorization;
(Bb) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(ii) The Underwriters shall have received on each Applicable Closing Date a certificate, dated such Applicable Closing Date and signed by an executive officer of the Company, to the effect set forth in Section 7(a)(i)(A) above and to the effect that the representations and warranties of the Company contained set forth in the first sentence of Section 2.1 and in Section 2.3 and any representations and warranties of the Company set forth in this Agreement that are true and correct qualified as of such Applicable Closing Date and that to materiality shall be
(c) the Company has shall have performed or complied in all material respects with all of the its agreements and satisfied all of the conditions on its part covenants required to be performed or satisfied hereunder on complied with under this Agreement as of or before such Applicable Closing Date. The officer signing and delivering such certificate may rely upon prior to the best Effective Time;
(d) no Legal Proceeding shall be pending or threatened wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of his any of the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation or her knowledge as to proceedings threatened.
(iii) The Underwriters have a Company Material Adverse Effect, and no such judgment, order, decree, stipulation or injunction shall be in effect;
(e) the Company shall have received on delivered to the Buyer and the Transitory Subsidiary a certificate (the "Company Certificate") to the effect that each Applicable Closing Date of the conditions specified in clause (a) of Section 5.1 and clauses (a) through (d) (insofar as clause (d) relates to Legal Proceedings involving the Company or a Subsidiary) of this Section 5.2 is satisfied in all respects;
(f) each of the Company Stockholders shall have executed and delivered to the Buyer an opinion and letter of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, U.S. counsel for the Company, dated such Applicable Closing Date, Investment Representation Letter in the form attached hereto as Exhibit B and the Buyer shall have no reason to believe that the statements set forth therein are not true;
(g) the Buyer shall have received from counsel to the Company an opinion with respect to the matters set forth in Exhibit C respectivelyattached hereto, addressed to the Buyer and dated as of the Closing Date;
(h) the Buyer shall have received such other certificates and instruments (including without limitation certificates of good standing of the Company in its jurisdiction of organization and the various foreign jurisdictions in which it is qualified, certified charter documents, certificates as to the incumbency of officers and the adoption of authorizing resolutions) as it shall reasonably request in connection with the Closing.
(ivi) The Underwriters shall have received on each Applicable Closing Date an opinion of ▇Fred▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, Luxembourg counsel for the Company and Kinove Holdings, dated such Applicable Closing Date, in the form attached hereto as Exhibit D-1 and an opinion of NautaDutilh Avocats Luxembourg S.à ▇.▇., with respect to the Luxco Sellers, in the form attached hereto as Exhibit D-2.
(v) The Underwriters shall have received on each Applicable Closing Date an opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇ Chri▇▇▇▇▇▇▇ LLP, dated such Applicable Closing Date, ▇▇▇▇▇▇ ▇▇▇ll each have entered into a Non-Competition and Non-Solicitation Agreement and Invention and Non-Disclosure Agreement in the forms attached hereto as Exhibit D.
(j) The Company Stockholders shall have received releases from all employees of the Company who are entering into option agreements which releases shall be in the form attached hereto as Exhibit E.
(vi) The Underwriters shall have received on each Applicable Closing Date an opinion of the General Counsel of the Company, dated such Applicable Closing Date, in the form attached hereto as Exhibit F.
(vii) The Underwriters shall have received on each Applicable Closing Date an opinion of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, dated such Applicable Closing Date, in form and substance reasonably satisfactory to the Underwriters.
(viii) The Underwriters shall have received, on each of the date hereof and on each Applicable Closing Date, a letter dated the date hereof or such Applicable Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Ernst & Young GmbH Wirtschaftsprüfungsgesellschaft, independent registered public accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the Time of Sale Prospectus and the Prospectus; provided that the letter delivered on such Applicable Closing Date shall use a “cut-off date” not earlier than three business days prior to such Applicable Closing Date.
(ix) The “lock-up” agreements, each substantially in the form of Exhibit A hereto, between you and the officers and directors of the Company and other persons listed on Schedule V hereto, relating to sales and certain other dispositions of Common Shares or Related Securities, delivered to you on or before the date hereof, shall be in full force and effect on the Applicable Closing Date.
(x) On the Applicable Closing Date, the Representatives shall receive a written certificate executed by an authorized person of each Selling Shareholder, dated as of such Applicable Closing Date, to the effect that:
(A) the representations, warranties and covenants of such Selling Shareholder set forth in Section 2 or 3 of this Agreement, as applicable, are true and correct as of such Applicable Closing Date; and
(B) such Selling Shareholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder on or before such Applicable Closing Date.
(xi) The Underwriters shall have received, on the Applicable Closing Date, copies of the Custody Agreement entered into by each Luxco Seller and American Stock Transfer & Trust Company, LLC, as Custodian, relating to the Shares to be sold by such Luxco Seller on such Applicable Closing Date, which Custody Agreement shall be in full force and effect.
Appears in 1 contract
Conditions to Obligations. The obligations of the Selling Shareholders to sell the Shares to the Underwriters Buyer and the several obligations Transitory --------------------------------------------------------- Subsidiary. The obligation of each of the Underwriters Buyer and the Transitory Subsidiary ---------- to purchase and pay for consummate the Shares on an Applicable Closing Date are Transactions is subject to the condition that satisfaction (or waiver by the Share Transfer shall have occurred not later than Buyer) of the Closing Date.following additional conditions:
(a) The several obligations all outstanding convertible promissory notes of Adsmart held by CMGI shall have been converted into Adsmart Series B Preferred Stock;
(b) all outstanding Adsmart Preferred Shares shall have converted into Adsmart Common Shares;
(c) the number of Dissenting Shares shall not exceed 3% of the Underwriters are subject number of outstanding Adsmart Common Shares as of the Effective Time;
(d) Adsmart and the Subsidiaries shall have obtained (and shall have provided copies thereof to the following further conditions:Buyer) all of the waivers, permits, consents, approvals or other authorizations, and effected all of the registrations, filings and notices, referred to in Section 4.4 which are required on the part of Adsmart or the Subsidiaries, except for any the failure of which to obtain or effect would not have an Adsmart Company Material Adverse Effect or a material adverse effect on the ability of the Parties to consummate the transactions contemplated by this Agreement;
(ie) Subsequent to the execution representations and delivery warranties set forth in Articles III, IV and V of this Agreement shall be true and correct as of the date of this Agreement and prior to each Applicable Closing Date:
(A) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction as of the possible change, in the rating accorded any Closing as though made as of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act; and
(B) there shall not have occurred any changeClosing, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(ii) The Underwriters shall have received on each Applicable Closing Date a certificate, dated such Applicable Closing Date and signed by an executive officer of the Company, except to the effect set forth in Section 7(a)(i)(A) above and to the effect extent that the such representations and warranties are specifically made as of the Company contained a particular date (in this Agreement are which case such representations and warranties should be true and correct as of such Applicable Closing Date date) and except for any failures to be true and correct (without regard to any materiality, material adverse effect or knowledge qualification contained therein) that would not have a material adverse effect on the ability of the Parties to consummate the transactions contemplated by this Agreement, an Adsmart Material Adverse Effect or a "Company has Material Adverse Effect" (as defined in the Flycast Merger Agreement) and the Buyer shall have received a certificate signed on behalf of the Company, Adsmart and Flycast by an executive officer of CMGI, Adsmart and Flycast, respectively, to such effect;
(f) each of CMGI, Adsmart and Flycast shall have performed or complied with in all of the material respects its agreements and satisfied all of the conditions on its part covenants required to be performed or satisfied hereunder on complied with under this Agreement as of or before such Applicable Closing Date. The officer signing and delivering such certificate may rely upon prior to the best of his or her knowledge as to proceedings threatened.Closing;
(iiig) The Underwriters Adsmart Audited Financial Statements shall have received on each Applicable Closing Date an opinion been delivered to the Buyer and letter the revenue, net income (loss) and stockholders' equity reflected in the Adsmart Audited Financial Statements shall not differ from the same line items reflected in the Adsmart Financial Statements as of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, U.S. counsel the same dates and for the Company, dated such Applicable Closing Date, same periods in the form attached hereto as Exhibit B and Exhibit C respectively.
(iv) The Underwriters shall a manner that would have received on each Applicable Closing Date an opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, Luxembourg counsel for the Company and Kinove Holdings, dated such Applicable Closing Date, in the form attached hereto as Exhibit D-1 and an opinion of NautaDutilh Avocats Luxembourg S.à ▇.▇., with respect to the Luxco Sellers, in the form attached hereto as Exhibit D-2.
(v) The Underwriters shall have received on each Applicable Closing Date an opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, dated such Applicable Closing Date, in the form attached hereto as Exhibit E.
(vi) The Underwriters shall have received on each Applicable Closing Date an opinion of the General Counsel of the Company, dated such Applicable Closing Date, in the form attached hereto as Exhibit F.
(vii) The Underwriters shall have received on each Applicable Closing Date an opinion of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, dated such Applicable Closing Date, in form and substance reasonably satisfactory to the Underwriters.
(viii) The Underwriters shall have received, on each of the date hereof and on each Applicable Closing Date, a letter dated the date hereof or such Applicable Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Ernst & Young GmbH Wirtschaftsprüfungsgesellschaft, independent registered public accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the Time of Sale Prospectus and the Prospectus; provided that the letter delivered on such Applicable Closing Date shall use a “cut-off date” not earlier than three business days prior to such Applicable Closing Date.
(ix) The “lock-up” agreements, each substantially in the form of Exhibit A hereto, between you and the officers and directors of the Company and other persons listed on Schedule V hereto, relating to sales and certain other dispositions of Common Shares or Related Securities, delivered to you on or before the date hereof, shall be in full force and effect on the Applicable Closing Date.
(x) On the Applicable Closing Date, the Representatives shall receive a written certificate executed by an authorized person of each Selling Shareholder, dated as of such Applicable Closing Date, to the effect that:
(A) the representations, warranties and covenants of such Selling Shareholder set forth in Section 2 or 3 of this Agreement, as applicable, are true and correct as of such Applicable Closing Date; Adsmart Material Adverse Effect; and
(Bh) such Selling Shareholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder on or before such Applicable Closing Date.
(xi) The Underwriters there shall have received, on been no Company Material Adverse Effect (as defined above) from the Applicable Closing Date, copies date of the Custody Agreement entered into by each Luxco Seller and American Stock Transfer & Trust Company, LLC, as Custodian, relating Flycast Closing to the Shares to be sold by such Luxco Seller on such Applicable Closing Date, which Custody Agreement shall be in full force and effectdate of the Contribution Closing.
Appears in 1 contract
Sources: Merger Agreement (Cmgi Inc)
Conditions to Obligations. of the Buyer and the Seller -----------------------------------------------------
6.1 The Buyer's Conditions. ---------------------- The obligations of the Selling Shareholders Buyer to sell consummate the Shares to transactions contemplated hereunder are conditioned upon the Underwriters following, any or all of which may be waived by the Buyer in its sole and the several obligations absolute discretion:
(A) All representations and warranties of the Underwriters Seller contained in this Agreement that are qualified as to purchase materiality shall be true and pay for correct on and as of the Shares on an Applicable Closing Date with the same force and effect as though such representations and warranties had been made on and as of the Closing Date, and all representations and warranties of the Seller contained in this Agreement which are subject to not so qualified shall, in all material respects, be true and correct on and as of the condition that Closing Date with the Share Transfer shall have occurred not later than same force and effect as though such representations and warranties had been made on and as of the Closing Date.
(aB) The several obligations of the Underwriters are subject to the following further conditions:
(i) Subsequent to the execution and delivery of this Agreement and prior to each Applicable Closing Date:
(A) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible changeSeller shall, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act; and
(B) there shall not all material respects, have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company performed and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(ii) The Underwriters shall have received on each Applicable Closing Date a certificate, dated such Applicable Closing Date and signed by an executive officer of the Company, to the effect set forth in Section 7(a)(i)(A) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of such Applicable Closing Date and that the Company has complied with all of the covenants and agreements and satisfied all of the conditions on its part required by or pursuant to this Agreement, or any Exhibit or instrument delivered pursuant to this ------- Agreement, to be performed or satisfied hereunder complied with by it on or before such Applicable Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(iii) The Underwriters shall have received on each Applicable Closing Date an opinion and letter of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, U.S. counsel for the Company, dated such Applicable Closing Date, in the form attached hereto as Exhibit B and Exhibit C respectively.
(iv) The Underwriters shall have received on each Applicable Closing Date an opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, Luxembourg counsel for the Company and Kinove Holdings, dated such Applicable Closing Date, in the form attached hereto as Exhibit D-1 and an opinion of NautaDutilh Avocats Luxembourg S.à ▇.▇., with respect prior to the Luxco Sellers, in the form attached hereto as Exhibit D-2.
(v) The Underwriters shall have received on each Applicable Closing Date an opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, dated such Applicable Closing Date, in the form attached hereto as Exhibit E.
(vi) The Underwriters shall have received on each Applicable Closing Date an opinion of the General Counsel of the Company, dated such Applicable Closing Date, in the form attached hereto as Exhibit F.
(vii) The Underwriters shall have received on each Applicable Closing Date an opinion of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, dated such Applicable Closing Date, in form and substance reasonably satisfactory to the Underwriters.
(viii) The Underwriters shall have received, on each of the date hereof and on each Applicable Closing Date, a letter dated the date hereof or such Applicable Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Ernst & Young GmbH Wirtschaftsprüfungsgesellschaft, independent registered public accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the Time of Sale Prospectus and the Prospectus; provided that the letter delivered on such Applicable Closing Date shall use a “cut-off date” not earlier than three business days prior to such Applicable Closing Date.
(ixC) The “lock-up” agreements, each substantially in the form of Exhibit A hereto, between you Seller shall have obtained and the officers and directors of the Company and other persons listed on Schedule V hereto, relating to sales and certain other dispositions of Common Shares or Related Securities, delivered to you on or before the Buyer consents, in form reasonably satisfactory to the Buyer, executed by every party (other than the Seller) to every material Included Agreement to which the Seller becomes a party after the date hereof, shall be hereof whose consent to the assignment and delegation of such agreement to the Buyer is required in full force and effect on the Applicable Closing Dateorder to avoid a violation of such agreement.
(xD) On The Seller and the Applicable Closing DateBuyer shall, simultaneously with the Representatives shall receive a written certificate Closing, have executed by an authorized person of each Selling Shareholder, dated as of such Applicable Closing Date, to and delivered the effect that:
(A) the representations, warranties and covenants of such Selling Shareholder set forth in Section 2 or 3 of this Agreement, as applicable, are true and correct as of such Applicable Closing Date; and
(B) such Selling Shareholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder on or before such Applicable Closing DateTransaction Documents.
(xiE) The Underwriters shall Seyfarth Opinion shall, simultaneously with the Closing, have received, on the Applicable Closing Date, copies of the Custody Agreement entered into by each Luxco Seller and American Stock Transfer & Trust Company, LLC, as Custodian, relating been delivered to the Shares to be sold by such Luxco Seller on such Applicable Closing Date, which Custody Agreement shall be in full force and effectBuyer.
Appears in 1 contract
Conditions to Obligations. The obligations of the Selling Shareholders Company to sell the Shares to the Underwriters and the several obligations of the Underwriters to purchase and pay for the Shares on an Applicable the Closing Date are subject to the condition that the Share Transfer Registration Statement shall have occurred become effective not later than 5:30 p.m. (New York City time) on the Closing Date.
(a) date hereof. The several obligations of the Underwriters are subject to the following further conditions:
(ia) Subsequent to the execution and delivery of this Agreement and prior to each Applicable the Closing Date:
(Ai) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company's securities of the Company or any of its subsidiaries by any “"nationally recognized statistical rating organization,” " as such term is defined in Section 3(a)(62for purposes of Rule 436(g)(2) of under the Exchange Act; Securities Act; and
(Bii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time Prospectus (exclusive of Sale Prospectus any amendments or supplements thereto subsequent to the date of this Agreement) that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(iib) The Underwriters shall have received on each Applicable the Closing Date a certificate, dated such Applicable the Closing Date and signed by an the chief executive officer or a vice president of the Company and the chief financial officer of the Company, to the effect set forth in Section 7(a)(i)(A5(a)(i) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of such Applicable the Closing Date and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before such Applicable the Closing Date. The officer officers signing and delivering such certificate may each rely upon the best of his or her knowledge as to proceedings threatened.
(iiic) The Underwriters shall have received on each Applicable the Closing Date an opinion and letter of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, U.S. outside counsel for the Company, dated such Applicable the Closing Date, 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 will not contravene, to the best of such counsel's knowledge, any material statute, order, rule or regulation known to such counsel to be generally applicable to transactions of the type contemplated by this Agreement of any federal or state court or governmental agency or body having jurisdiction over the Company or any of its subsidiaries or any of their property or assets, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required under any such statute, order, rule or regulation for the performance by the Company of its obligations under this Agreement, except such as may have been obtained as of the date hereof and such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares;
(ii) the statements (A) in the Prospectus under the captions "Description of Capital Stock" and "Underwriters" and (B) in the Registration Statement in Item 15, in each case insofar as such statements constitute summaries of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings and fairly summarize the matters referred to therein;
(iii) such counsel does not have actual knowledge of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which any of the properties of the Company or any of its subsidiaries is subject that are required to be described in the Registration Statement or the Prospectus and are not so described or of any statutes, regulations, contracts or other documents that are required to be described in the Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement that are not described or filed as required;
(iv) the Company is not, and after giving effect to the offering and sale of the Shares and the application of the proceeds thereof as described in the Prospectus will not be required to register as an "investment company" as such term is defined in the Investment Company Act of 1940, as amended; and
(v) such counsel is of the opinion that (1) each document, if any, filed pursuant to the Exchange Act and incorporated by reference in the Registration Statement and the Prospectus (except for financial statements and schedules and other financial and statistical data included therein as to which such counsel need not express any opinion) complied when so filed as to form attached hereto in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder and (2) the Registration Statement and Prospectus (except for financial statements and schedules and other financial and statistical data included therein as Exhibit B to which such counsel need not express any opinion) comply as to form in all material respects with the Securities Act and Exhibit C respectivelythe applicable rules and regulations of the Commission thereunder. In addition, such counsel shall state that it has no reason to believe that (except for financial statements and schedules and other financial and statistical data as to which such counsel need not express any belief) the Registration Statement and the prospectus included therein at the time the Registration Statement became effective contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading and that it has no reason to believe that (except for financial statements and schedules and other financial and statistical data as to which such counsel need not express any belief) the Prospectus contains any untrue statement of a material fact 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.
(ivd) The Underwriters shall have received on each Applicable the Closing Date an opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇▇▇, Luxembourg in-house counsel for the Company and Kinove HoldingsCompany, dated such Applicable the Closing Date, to the effect that:
(i) the Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the State of Delaware, has the corporate power and authority to own its property and to conduct its business as described in the form attached hereto as Exhibit D-1 Prospectus and an opinion is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of NautaDutilh Avocats Luxembourg S.à ▇.▇.its business or its ownership or leasing of property requires such qualification, with respect except to the Luxco Sellersextent that the failure to be so qualified or be in good standing would not have a material adverse effect on the Company and its subsidiaries, taken as a whole;
(ii) each subsidiary of the Company, other than subsidiaries which, in the aggregate, do not account for more than 10% of any of the total assets, revenues or earnings of the Company in any of the three prior fiscal years, has been duly incorporated or organized, is validly existing as a corporation or partnership in good standing under the laws of the jurisdiction of its incorporation or organization, has the corporate or partnership power and authority to own its property and to conduct its business as described in the Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the Company and its subsidiaries, taken as a whole;
(iii) the authorized capital stock of the Company conforms as to legal matters to the description thereof contained in the Prospectus;
(iv) the shares of Common Stock outstanding prior to the issuance of the Shares have been duly authorized and are validly issued, fully paid and non-assessable;
(v) all of the issued shares of capital stock or other equity interests of each subsidiary of the Company have been duly authorized and are validly issued, fully paid and non-assessable and are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims, except for pledges pursuant to the Company's senior credit facility under the terms described in the Prospectus;
(vi) the Shares have been duly authorized and, when issued and delivered in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Shares will not be subject to any preemptive or similar rights;
(vii) this Agreement has been duly authorized, executed and delivered by the Company;
(viii) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement will not contravene the certificate of incorporation or by-laws of the Company or, to the best of such counsel's knowledge, any agreement or other instrument binding upon the Company or any of its subsidiaries that is material to the Company and its subsidiaries, taken as a whole, or, to the best of such counsel's knowledge, any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Company or any subsidiary;
(ix) such counsel does not have actual knowledge of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which any of the properties of the Company or any of its subsidiaries is subject that are required to be described in the Registration Statement or the Prospectus and are not so described or of any statutes, regulations, contracts or other documents that are required to be described in the Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement that are not described or filed as required;
(x) such counsel is of the opinion that (1) each document, if any, filed pursuant to the Exchange Act and incorporated by reference in the Registration Statement and the Prospectus (except for financial statements and schedules and other financial and statistical data included therein as to which such counsel need not express any opinion) complied when so filed as to form attached hereto in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder and (2) the Registration Statement and Prospectus (except for financial statements and schedules and other financial and statistical data included therein as Exhibit D-2to which such counsel need not express any opinion) comply as to form in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder. In addition, such counsel shall state that he has no reason to believe that (except for financial statements and schedules and other financial and statistical data as to which such counsel need not express any belief) the Registration Statement and the prospectus included therein at the time the Registration Statement became effective contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading and that he has no reason to believe that (except for financial statements and schedules and other financial and statistical data as to which such counsel need not express any belief) the Prospectus contains any untrue statement of a material fact 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.
(ve) The Underwriters shall have received on each Applicable the Closing Date an opinion of Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇, counsel for the Underwriters, dated the Closing Date, covering the matters referred to in Sections 5(d)(vi), 5(d)(vii), 5(c)(ii) (but only as to the statements in the Prospectus under "Description of Capital Stock" and "Underwriters") and 5(c)(v) (other than with respect to documents incorporated by reference in the Registration Statement and Prospectus) above. With respect to the last paragraph of Section 5(c) and Section 5(d) above, ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, dated such Applicable Closing Date, in the form attached hereto as Exhibit E.
(vi) The Underwriters shall have received on each Applicable Closing Date an opinion of the General Counsel of the Company, dated such Applicable Closing Date, in the form attached hereto as Exhibit F.
(vii) The Underwriters shall have received on each Applicable Closing Date an opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLPand ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ & Wood, counsel for as the Underwriterscase may be, dated such Applicable Closing Datemay state that their opinion and belief are based upon their participation in the preparation of the Registration Statement and Prospectus and any amendments or supplements thereto and review and discussion of the contents thereof, but are without independent check or verification, except as specified. The opinions described above, other than in form and substance reasonably satisfactory Section 5(e), shall be rendered to the UnderwritersUnderwriters at the request of the Company and shall so state therein.
(viiif) The Underwriters shall have received, on each of the date hereof and on each Applicable the Closing Date, a letter dated the date hereof or such Applicable the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Ernst & Young GmbH WirtschaftsprüfungsgesellschaftLLP, independent registered public accountants, containing statements and information of the type ordinarily included in accountants’ “' "comfort letters” " to underwriters with respect to the financial statements and certain financial information contained in in, or incorporated by reference into, the Registration Statement, the Time of Sale Prospectus Statement and the Prospectus; provided Prospectus; PROVIDED that the letter delivered on such Applicable the Closing Date shall use a “"cut-off date” " not earlier than three business days prior to such Applicable Closing Datethe date hereof.
(ixg) The “"lock-up” " agreements, each substantially in the form of Exhibit A hereto, between you and the certain stockholders, officers and directors of the Company and other persons listed on Schedule V hereto, relating to sales and certain other dispositions of shares of Common Shares Stock or Related Securitiescertain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Applicable Closing Date.
(xh) On The Company shall have given the Applicable Closing Date, Subject Stockholders notice of the Representatives shall receive a written certificate executed by an authorized person of each Selling Shareholder, dated as of such Applicable Closing Date, to the effect that:
(A) the representations, warranties and covenants of such Selling Shareholder "lock-up" agreement set forth in the third paragraph of Section 2 or 3 of this Agreement, as applicable, are true and correct as of such Applicable Closing Date; and
(B) such Selling Shareholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder on or before such Applicable Closing Date.
(xii) The Underwriters shall have receivedStockholders Agreement, on substantially in the Applicable Closing Date, copies same form as it is as of the Custody Agreement entered into by each Luxco Seller and American Stock Transfer & Trust Companydate hereof, LLC, as Custodian, relating to the Shares to be sold by such Luxco Seller on such Applicable Closing Date, which Custody Agreement shall be in full force and effecteffect on the Closing Date. The several obligations of the Underwriters to purchase Additional Shares hereunder are subject to the delivery to you on the Option Closing Date of such documents as you may reasonably request with respect to the good standing of the Company, the due authorization and issuance of the Additional Shares and other matters related to the issuance of the Additional Shares.
Appears in 1 contract
Sources: Underwriting Agreement (Aftermarket Technology Corp)
Conditions to Obligations. The obligations of the Selling Shareholders to sell the Shares to the Underwriters Buyer and the several obligations Transitory Subsidiary. The obligation of each of the Underwriters Buyer and the Transitory Subsidiary to purchase and pay for consummate the Shares on an Applicable Closing Date are Merger is subject to the condition that satisfaction (or waiver by the Share Transfer shall have occurred not later than Buyer) of the Closing Date.following additional conditions:
(a) The several obligations the number of Dissenting Shares shall not exceed 3% of the Underwriters are subject number of outstanding Common Shares as of the Effective Time;
(b) the Company will have obtained (and will have provided copies thereof to the following further conditions:
(iBuyer) Subsequent to the execution and delivery of this Agreement and prior to each Applicable Closing Date:
(A) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction all of the possible changewaivers, in the rating accorded any permits, consents, approvals or other authorizations, and effected all of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined registrations, filings and notices, referred to in Section 3(a)(62) of the Exchange Act; and
(B) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Shares 4.2 which are required on the terms and in the manner contemplated in the Time of Sale Prospectus.
(ii) The Underwriters shall have received on each Applicable Closing Date a certificate, dated such Applicable Closing Date and signed by an executive officer part of the Company, to the effect set forth in Section 7(a)(i)(A;
(c) above and to the effect that the representations and warranties of the Company contained set forth in the first sentence of Section 2.1 and in Section 2.3 and any representations and warranties of the Company set forth in this Agreement that are qualified as to materiality shall be true and correct in all respects, and all other representations and warranties of the Company set forth in this Agreement shall be true and correct in all material respects, in each case as of the date of this Agreement and as of the Effective Time as though made as of the Effective Time, except to the extent such representations and warranties are specifically made as of a particular date or as of the date of this Agreement (in which case such representations and warranties shall be true and correct as of such Applicable Closing Date and that date);
(d) the Company has shall have performed or complied with in all of the material respects its agreements and satisfied all of the conditions on its part covenants required to be performed or satisfied hereunder on complied with under this Agreement as of or before such Applicable Closing Date. The officer signing and delivering such certificate may rely upon prior to the best Effective Time;
(e) no Legal Proceeding shall be pending or threatened wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of his any of the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation or her knowledge as to proceedings threatened.
(iii) The Underwriters have a Company Material Adverse Effect, and no such judgment, order, decree, stipulation or injunction shall be in effect;
(f) the Company shall have received on delivered to the Buyer and the Transitory Subsidiary a certificate (the "Company Certificate") to the effect that each Applicable Closing Date an opinion of the conditions specified in Section 5.1 and letter of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, U.S. counsel for clauses (a) through (e) (insofar as clause (e) relates to Legal Proceedings involving the Company, dated such Applicable Closing Date, ) of this Section 5.2 is satisfied in all respects;
(g) each of the Company Stockholders shall have executed and delivered to the Buyer an Investment Representation Letter in the form attached hereto as Exhibit B and Exhibit C respectively.the Buyer shall have no reason to believe that the statements set forth therein are not true and shall be reasonably satisfied that the issuance and sale of the Merger Shares is exempt from the registration requirements of the Securities Act;
(ivh) The Underwriters each of the Key Employees shall have received on each Applicable Closing Date an opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, Luxembourg counsel for the Company executed and Kinove Holdings, dated such Applicable Closing Date, in the form attached hereto as Exhibit D-1 and an opinion of NautaDutilh Avocats Luxembourg S.à ▇.▇., with respect delivered to the Luxco SellersBuyer an invention, in the form attached hereto as Exhibit D-2.
(v) The Underwriters shall have received on each Applicable Closing Date an opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLPnon-disclosure, dated such Applicable Closing Date, in the form attached hereto as Exhibit E.
(vi) The Underwriters shall have received on each Applicable Closing Date an opinion of the General Counsel of the Company, dated such Applicable Closing Date, in the form attached hereto as Exhibit F.
(vii) The Underwriters shall have received on each Applicable Closing Date an opinion of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, dated such Applicable Closing Date, non-competition and non-solicitation agreement in form and substance reasonably satisfactory to the Underwriters.Buyer;
(viiii) The Underwriters shall have received, on each of the date hereof Key Employees shall have executed and on delivered a stock restriction agreement in substantially the form attached hereto as Exhibit C;
(j) each Applicable of the Company Stockholders who is not a Key Employee shall have executed and delivered a stockholders agreement in substantially the form attached hereto as Exhibit D;
(k) the Buyer shall have received from counsel to the Company an opinion with respect to the matters set forth in Exhibit E attached hereto, addressed to the Buyer and dated as of the Closing Date;
(l) the Buyer shall have received copies of the resignations, a letter dated effective as of the date hereof Effective Time, of each director and officer of the Company (other than any such resignations which the Buyer designates, by written notice to the Company, as unnecessary);
(m) the Buyer shall have received evidence in form and substance satisfactory to it that the Warrant has been fully exercised or such Applicable Closing Dateterminated, as the case may be, in form and substance satisfactory to that the Underwriters, from Ernst & Young GmbH Wirtschaftsprüfungsgesellschaft, independent registered public accountants, containing statements and information holders of the type ordinarily included in accountants’ “comfort letters” to underwriters Warrant shall have no further rights under such Warrant and that the Company shall have no further obligations with respect to the financial statements and certain financial information contained in the Registration Statement, the Time of Sale Prospectus and the Prospectus; provided that the letter delivered on such Applicable Closing Date shall use a “cut-off date” not earlier than three business days prior to such Applicable Closing Date.Warrant; and
(ixn) The “lock-up” agreements, each substantially in the form Buyer shall have received such other certificates and instruments (including without limitation certificates of Exhibit A hereto, between you and the officers and directors good standing of the Company in their jurisdiction of organization and other persons listed on Schedule V heretothe various foreign jurisdictions in which they are qualified, relating to sales and certain other dispositions of Common Shares or Related Securitiescertified charter documents, delivered to you on or before the date hereof, shall be in full force and effect on the Applicable Closing Date.
(x) On the Applicable Closing Date, the Representatives shall receive a written certificate executed by an authorized person of each Selling Shareholder, dated certificates as of such Applicable Closing Date, to the effect that:
(Aincumbency of officers and the adoption of authorizing resolutions) as it shall reasonably request in connection with the representations, warranties and covenants of such Selling Shareholder set forth in Section 2 or 3 of this Agreement, as applicable, are true and correct as of such Applicable Closing Date; and
(B) such Selling Shareholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder on or before such Applicable Closing DateClosing.
(xi) The Underwriters shall have received, on the Applicable Closing Date, copies of the Custody Agreement entered into by each Luxco Seller and American Stock Transfer & Trust Company, LLC, as Custodian, relating to the Shares to be sold by such Luxco Seller on such Applicable Closing Date, which Custody Agreement shall be in full force and effect.
Appears in 1 contract
Conditions to Obligations. The obligations of the Selling Shareholders to sell the Shares to the Underwriters Buyer and the several obligations Transitory Subsidiary. The obligation of each of the Underwriters Buyer and the Transitory Subsidiary to purchase and pay for consummate the Shares on an Applicable Closing Date are Merger is subject to the condition that satisfaction (or waiver by the Share Transfer shall have occurred not later than Buyer) of the Closing Date.following additional conditions:
(a) The several obligations the number of Dissenting Shares shall not exceed 10% of the Underwriters are subject number of outstanding Common Shares as of the Effective Time (after giving effect to the following further conditions:conversion into Common Shares of all outstanding Preferred Shares);
(ib) Subsequent the Company shall have obtained (and shall have provided copies thereof to the execution and delivery of this Agreement and prior to each Applicable Closing Date:
(ABuyer) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction all of the possible changewaivers, in the rating accorded any permits, consents, approvals or other authorizations, and effected all of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined registrations, filings and notices, referred to in Section 3(a)(62) of the Exchange Act; and
(B) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Shares 4.2 which are required on the terms and in the manner contemplated in the Time of Sale Prospectus.
(ii) The Underwriters shall have received on each Applicable Closing Date a certificate, dated such Applicable Closing Date and signed by an executive officer part of the Company, except for any the failure of which to obtain or effect would not have a Company Material Adverse Effect or a material adverse effect on the effect set forth in Section 7(a)(i)(Aability of the Parties to consummate the transactions contemplated by this Agreement;
(c) above and to the effect that the representations and warranties of the Company contained set forth in this Agreement are shall be true and correct as of the Effective Time as though made as of the Effective Time, except to the extent that any such Applicable Closing Date inaccuracies, individually or in the aggregate, would not have a Company Material Adverse Effect or a material adverse effect on the ability of the Parties to consummate the transactions contemplated by this Agreement (it being agreed that any materiality qualifications in particular representations and that warranties shall be disregarded in determining whether any such inaccuracies would have a Company Material Adverse Effect for purposes of this Section 5.2(c));
(d) the Company has shall have performed or complied with in all of the material respects its agreements and satisfied all of the conditions on its part covenants required to be performed or satisfied hereunder on complied with under this Agreement as of or before such Applicable Closing Date. The officer signing and delivering such certificate may rely upon prior to the best Effective Time;
(e) no Legal Proceeding shall be pending or threatened in writing wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of his any of the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation or her knowledge as to proceedings threatened.
(iii) The Underwriters have a Company Material Adverse Effect, and no such judgment, order, decree, stipulation or injunction shall be in effect;
(f) the Company shall have received on delivered to the Buyer and the Transitory Subsidiary a certificate (the "Company Certificate") to the effect that each Applicable Closing Date an opinion of the conditions specified in Section 5.1 and letter clauses (a) through (e) (insofar as clause (e) relates to Legal Proceedings involving the Company) of this Section 5.2 is satisfied;
(g) each of Rand▇ ▇▇▇▇▇, ▇▇ff ▇▇▇▇▇▇, ▇▇ri▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, U.S. counsel for the Company, dated such Applicable Closing Date, in the form attached hereto as Exhibit B and Exhibit C respectively.
(iv) The Underwriters shall have received on each Applicable Closing Date an opinion of Davi▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, Luxembourg counsel for the Company and Kinove Holdings, dated such Applicable Closing Date, in the form attached hereto as Exhibit D-1 and an opinion of NautaDutilh Avocats Luxembourg S.à ▇.▇., with respect to the Luxco Sellers, in the form attached hereto as Exhibit D-2.
(v) The Underwriters shall have received on each Applicable Closing Date an opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, dated such Applicable Closing Date, in the form attached hereto as Exhibit E.
(vi) The Underwriters shall have received on each Applicable Closing Date an opinion of the General Counsel of the Company, dated such Applicable Closing Date, in the form attached hereto as Exhibit F.
(vii) The Underwriters shall have received on each Applicable Closing Date an opinion of ▇▇▇▇▇ ▇▇▇▇ ll have executed and delivered to the Buyer a Non-Competition Agreement in the form attached hereto as Exhibit D;
(h) each of the Company Stockholders (other than those exercising dissenters' rights) shall have executed and delivered to the Buyer an Investment Representation Letter in the form attached hereto as Exhibit E;
(i) the Buyer shall have received a letter from Ernst & Young LLP, auditors for the Buyer, in a form reasonably satisfactory to the Buyer, regarding its concurrence with the conclusion of the Buyer that the Buyer may treat the Merger as a "pooling of interests" for accounting purposes under Accounting Principles Board Opinion No. 16;
(j) the Buyer shall have received from Gray ▇▇▇▇y ▇▇▇▇ LLP, counsel for the Underwriters, dated such Applicable Closing Date, in form and substance reasonably satisfactory to the Underwriters.
(viii) The Underwriters shall have received, on each of the date hereof and on each Applicable Closing Date, a letter dated the date hereof or such Applicable Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Ernst & Young GmbH Wirtschaftsprüfungsgesellschaft, independent registered public accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters ▇riedenrich LLP an opinion with respect to the financial statements matters set forth in Exhibit F attached hereto, addressed to the Buyer and certain financial information contained in dated as of the Registration Statement, the Time of Sale Prospectus and the Prospectus; provided that the letter delivered on such Applicable Closing Date shall use a “cut-off date” not earlier than three business days prior to such Applicable Closing Date.; and
(ixk) The “lock-up” agreementsthe Buyer shall have received copies of the resignations, effective as of the Effective Time, of each substantially in the form of Exhibit A hereto, between you director and the officers and directors officer of the Company and (other persons listed on Schedule V heretothan any such resignations which the Buyer designates, relating to sales and certain other dispositions of Common Shares or Related Securities, delivered to you on or before the date hereof, shall be in full force and effect on the Applicable Closing Date.
(x) On the Applicable Closing Date, the Representatives shall receive a by written certificate executed by an authorized person of each Selling Shareholder, dated as of such Applicable Closing Date, notice to the effect that:
(A) the representations, warranties and covenants of such Selling Shareholder set forth in Section 2 or 3 of this AgreementCompany, as applicable, are true and correct as of such Applicable Closing Date; and
(B) such Selling Shareholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder on or before such Applicable Closing Dateunnecessary).
(xi) The Underwriters shall have received, on the Applicable Closing Date, copies of the Custody Agreement entered into by each Luxco Seller and American Stock Transfer & Trust Company, LLC, as Custodian, relating to the Shares to be sold by such Luxco Seller on such Applicable Closing Date, which Custody Agreement shall be in full force and effect.
Appears in 1 contract
Conditions to Obligations. The several obligations of the Selling Shareholders Stockholders to sell the Shares to the Underwriters Underwriter and the several obligations obligation of the Underwriters Underwriter to purchase and pay for the Shares on an Applicable the Closing Date are subject to the condition that the Share Transfer Registration Statement shall have occurred become effective not later than 4:00 p.m. (New York City time) on the Closing Date.
(a) date hereof. The several obligations of the Underwriters Underwriter are subject to the following further conditions:
(ia) Subsequent to the execution and delivery of this Agreement and prior to each Applicable the Closing Date:
(Ai) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company's securities of the Company or any of its subsidiaries by any “"nationally recognized statistical rating organization,” " as such term is defined in Section 3(a)(62for purposes of Rule 436(g)(2) of under the Exchange Act; Securities Act; and
(Bii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time Prospectus (exclusive of Sale Prospectus any amendments or supplements thereto subsequent to the date of this Agreement) that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(iib) The Underwriters Underwriter shall have received on each Applicable the Closing Date a certificate, dated such Applicable the Closing Date and signed by an the chief executive officer or a vice president of the Company and the chief financial officer of the Company, to the effect set forth in Section 7(a)(i)(A6(a)(i) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of such Applicable the Closing Date and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before such Applicable the Closing Date. The officer officers signing and delivering such certificate may each rely upon the best of his or her knowledge as to proceedings threatened.
(iiic) The Underwriters Underwriter shall have received on each Applicable the Closing Date an opinion and letter of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, U.S. outside counsel for the Company, dated such Applicable the Closing Date, 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 will not contravene, to the best of such counsel's knowledge, any material statute, order, rule or regulation known to such counsel to be generally applicable to transactions of the type contemplated by this Agreement of any federal or state court or governmental agency or body having jurisdiction over the Company or any of its subsidiaries or any of their property or assets, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required under any such statute, order, rule or regulation for the performance by the Company of its obligations under this Agreement, except such as may have been obtained as of the date hereof and such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares;
(ii) the statements (A) in the form attached hereto Prospectus under the captions "Description of Capital Stock" and "Underwriters" and (B) in the Registration Statement in Item 15, in each case insofar as Exhibit B such statements constitute summaries of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and Exhibit C respectively.proceedings and fairly summarize the matters referred to therein;
(iii) such counsel does not have actual knowledge of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which any of the properties of the Company or any of its subsidiaries is subject that are required to be described in the Registration Statement or the Prospectus and are not so described or of any statutes, regulations, contracts or other documents that are required to be described in the Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement that are not described or filed as required;
(iv) the Company is not required to register as an "investment company" as such term is defined in the Investment Company Act of 1940, as amended; and
(v) such counsel is of the opinion that (1) each document, if any, filed pursuant to the Exchange Act and incorporated by reference in the Registration Statement and the Prospectus (except for financial statements and schedules and other financial and statistical data included therein as to which such counsel need not express any opinion) complied when so filed as to form in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder and (2) the Registration Statement and Prospectus (except for financial statements and schedules and other financial and statistical data included therein as to which such counsel need not express any opinion) comply as to form in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder. In addition, such counsel shall state that it has no reason to believe that (except for financial statements and schedules and other financial and statistical data as to which such counsel need not express any belief) the Registration Statement and the prospectus included therein at the time the Registration Statement became effective contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading and that it has no reason to believe that (except for financial statements and schedules and other financial and statistical data as to which such counsel need not express any belief) the Prospectus contains any untrue statement of a material fact 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.
(d) The Underwriters Underwriter shall have received on each Applicable the Closing Date an opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇▇▇, Luxembourg in-house counsel for the Company and Kinove HoldingsCompany, dated such Applicable the Closing Date, to the effect that:
(i) the Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the State of Delaware, has the corporate power and authority to own its property and to conduct its business as described in the form attached hereto as Exhibit D-1 Prospectus and an opinion is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of NautaDutilh Avocats Luxembourg S.à ▇.▇.its business or its ownership or leasing of property requires such qualification, with respect except to the Luxco Sellersextent that the failure to be so qualified or be in good standing would not have a material adverse effect on the Company and its subsidiaries, taken as a whole;
(ii) each subsidiary of the Company, other than subsidiaries which, in the form attached hereto aggregate, do not account for more than 10% of any of the total assets, revenues or earnings of the Company in any of the three prior fiscal years, has been duly incorporated or organized, is validly existing as Exhibit D-2.a corporation or partnership in good standing under the laws of the jurisdiction of its incorporation or organization, has the corporate or partnership power and authority to own its property and to conduct its business as described in the Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the Company and its subsidiaries, taken as a whole;
(iii) the authorized capital stock of the Company conforms as to legal matters to the description thereof contained in the Prospectus;
(iv) the shares of Common Stock (including the Shares to be sold by the Selling Stockholders) have been duly authorized and are validly issued, fully paid and non-assessable;
(v) all of the issued shares of capital stock or other equity interests of each subsidiary of the Company have been duly authorized and are validly issued, fully paid and non-assessable and are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims, except for pledges pursuant to the Company's senior credit facility under the terms described in the Prospectus;
(vi) this Agreement has been duly authorized, executed and delivered by the Company;
(vii) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement will not contravene the certificate of incorporation or by-laws of the Company or, to the best of such counsel's knowledge, any agreement or other instrument binding upon the Company or any of its subsidiaries that is material to the Company and its subsidiaries, taken as a whole, or, to the best of such counsel's knowledge, any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Company or any subsidiary;
(viii) such counsel does not have actual knowledge of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which any of the properties of the Company or any of its subsidiaries is subject that are required to be described in the Registration Statement or the Prospectus and are not so described or of any statutes, regulations, contracts or other documents that are required to be described in the Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement that are not described or filed as required;
(ix) such counsel is of the opinion that (1) each document, if any, filed pursuant to the Exchange Act and incorporated by reference in the Registration Statement and the Prospectus (except for financial statements and schedules and other financial and statistical data included therein as to which such counsel need not express any opinion) complied when so filed as to form in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder and (2) the Registration Statement and Prospectus (except for financial statements and schedules and other financial and statistical data included therein as to which such counsel need not express any opinion) comply as to form in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder. In addition, such counsel shall state that he has no reason to believe that (except for financial statements and schedules and other financial and statistical data as to which such counsel need not express any belief) the Registration Statement and the prospectus included therein at the time the Registration Statement became effective contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading and that he has no reason to believe that (except for financial statements and schedules and other financial and statistical data as to which such counsel need not express any belief) the Prospectus contains any untrue statement of a material fact 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.
(e) The Underwriters Underwriter shall have received on each Applicable the Closing Date an opinion of counsel for each Selling Stockholder reasonably acceptable to you, dated the Closing Date, to the effect that:
(i) this Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Stockholder;
(ii) the execution and delivery by such Selling Stockholder of, and the performance by such Selling Stockholder of its obligations under, this Agreement and the Custody Agreement and Powers of Attorney of such Selling Stockholder will not contravene any provision of applicable law known to such counsel to be generally applicable to transactions of the type contemplated by the Underwriting Agreement or the organizational documents of such Selling Stockholder that is an entity or, to such counsel's knowledge, any agreement or other instrument binding upon such Selling Stockholder or, to such counsel's knowledge, any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Stockholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by such Selling Stockholder of its obligations under this Agreement or the Custody Agreement or Power of Attorney of such Selling Stockholder, except such as may have been obtained as of the date hereof and such as may be required by the securities or Blue Sky laws of the various states in connection with offer and sale of the Shares;
(iii) such Selling Stockholder has valid title to the Shares to be sold by it and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and the Custody Agreement and Power of Attorney of such Selling Stockholder and to sell, transfer and deliver the Shares to be sold by it;
(iv) the Custody Agreement and the Power of Attorney of such Selling Stockholder have been duly authorized, executed and delivered by or on behalf of such Selling Stockholder and are valid and binding agreements of such Selling Stockholder except as to enforceability (i) to the extent the provisions relating to indemnification or contribution may be contrary to public policy or (ii) to the effect of any bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally or general principles of equity; and
(v) assuming that the Underwriter purchases the Shares being sold by such Selling Stockholder at the Closing Date for value and without notice of any "adverse claim" (as defined in Section 8-102(a)(1) of the Uniform Commercial Code as in effect at the Closing Date in the State of New York ("NYUCC")) with respect to the Shares being sold by such Selling Stockholder at the Closing Date, upon delivery by the Custodian in accordance with this Agreement of the certificates representing the Shares being sold by such Selling Stockholder at the Closing Date, either registered in the name of the Underwriter or effectively endorsed to the Underwriter in blank, the Underwriter will be a "protected purchaser" (as defined in Section 8-303 of the NYUCC) with respect to the Shares being purchased by the Underwriter, and the Underwriter will acquire the interests of the Shares being sold by such Selling Stockholder (including, without limitation, all rights that such Selling Stockholder had or has the power to transfer in the Shares being sold by it) free of any "adverse claim" (within the meaning of Section 8-102(a)(1) of the NYUCC).
(f) The Underwriter shall have received on the Closing Date an opinion of Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇, counsel for the Underwriter, dated the Closing Date, covering the matters referred to in Sections 6(d)(vi), 6(d)(vii), 6(c)(ii) (but only as to the statements in the Prospectus under "Description of Capital Stock" and "Underwriters") and 6(c)(v) (other than with respect to documents incorporated by reference in the Registration Statement and Prospectus) above. With respect to the last paragraph of Section 6(c) and Section 6(d) above, ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, dated such Applicable Closing Date, in the form attached hereto as Exhibit E.
(vi) The Underwriters shall have received on each Applicable Closing Date an opinion of the General Counsel of the Company, dated such Applicable Closing Date, in the form attached hereto as Exhibit F.
(vii) The Underwriters shall have received on each Applicable Closing Date an opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, dated such Applicable Closing Date, in form and substance reasonably satisfactory to the Underwriters.
(viii) The Underwriters shall have received, on each of the date hereof and on each Applicable Closing Date, a letter dated the date hereof or such Applicable Closing Date, as the case may be, may state that their opinion and belief are based upon their participation in form and substance satisfactory to the Underwriters, from Ernst & Young GmbH Wirtschaftsprüfungsgesellschaft, independent registered public accountants, containing statements and information preparation of the type ordinarily included in accountants’ “comfort letters” to underwriters with Registration Statement and Prospectus and any amendments or supplements thereto and review and discussion of the contents thereof, but are without independent check or verification, except as specified. With respect to Sections 6(e) above, counsel for the financial statements and certain financial information contained in the Registration Statement, the Time of Sale Prospectus and the Prospectus; provided that the letter delivered on such Applicable Closing Date shall use a “cut-off date” not earlier than three business days prior to such Applicable Closing Date.
(ix) The “lock-up” agreements, each substantially in the form of Exhibit A hereto, between you and the officers and directors of the Company and other persons listed on Schedule V hereto, relating to sales and certain other dispositions of Common Shares or Related Securities, delivered to you on or before the date hereof, shall be in full force and effect on the Applicable Closing Date.
(x) On the Applicable Closing Date, the Representatives shall receive a written certificate executed by an authorized person of each Selling Shareholder, dated as of such Applicable Closing Date, to the effect that:
(A) the representations, warranties and covenants of such Selling Shareholder set forth in Section 2 or 3 of this Agreement, as applicable, are true and correct as of such Applicable Closing Date; and
(B) such Selling Shareholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder on or before such Applicable Closing Date.
(xi) The Underwriters shall have received, on the Applicable Closing Date, copies of the Custody Agreement entered into by each Luxco Seller and American Stock Transfer & Trust Company, LLC, as Custodian, relating to the Shares to be sold by such Luxco Seller on such Applicable Closing Date, which Custody Agreement shall be in full force and effect.Stockholders may rely upon o
Appears in 1 contract
Sources: Underwriting Agreement (Aftermarket Technology Corp)
Conditions to Obligations. The obligations obligation of the Selling Shareholders Shareholder to sell the Shares to the Underwriters and the several obligations of the Underwriters to purchase and pay for the Shares on an Applicable the Closing Date are subject to the condition that the Share Transfer Registration Statement shall have occurred become effective not later than 5:00 p.m. (New York City time) on the Closing Date.
(a) date hereof. The several obligations of the Underwriters are subject to the following further conditions:
(ia) 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.
(b) The representations and warranties of the Company and the Selling Shareholder contained in this Agreement shall be true and correct as of the date hereof and as of the Closing Date, and each of the Company and the Selling Shareholder shall have complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date.
(c) Subsequent to the execution and delivery of this Agreement and prior to each Applicable the Closing Date:
(Ai) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction (other than a notice of the a possible changeupgrading), in the rating accorded any of the securities of the Company or any of its subsidiaries or affiliates by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act; Act; and
(Bii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business business, management or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus that, in your judgmentthe judgment of the Representatives, is material and adverse and that makes it, in your judgmentthe judgment of the Representatives, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(iid) The Underwriters shall have received on each Applicable the Closing Date a certificate, dated such Applicable the Closing Date and signed by an executive officer of the Company, to the effect set forth in Section 7(a)(i)(A6(c)(i) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of such Applicable the Closing Date and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before such Applicable the Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(iiie) The Underwriters shall have received on each Applicable the Closing Date an opinion and letter of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, U.S. counsel for the Companya certificate, dated such Applicable the Closing Date and signed by an executive officer of the Selling Shareholder, to the effect that the representations and warranties of the Selling Shareholder contained in this Agreement are true and correct as of the Closing Date and that the Selling Shareholder has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date, in . The officer signing and delivering such certificate may rely upon the form attached hereto best of his or her knowledge as Exhibit B and Exhibit C respectivelyto proceedings threatened.
(ivf) The Underwriters shall have received on each Applicable the Closing Date (i) an opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, Luxembourg counsel for the Company and Kinove Holdings, dated such Applicable Closing Date, in the form attached hereto as Exhibit D-1 and an opinion of NautaDutilh Avocats Luxembourg S.à ▇.▇., with respect to the Luxco Sellers, in the form attached hereto as Exhibit D-2.
(v) The Underwriters shall have received on each Applicable Closing Date an opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, dated such Applicable Closing Date, in the form attached hereto as Exhibit E.
(vi) The Underwriters shall have received on each Applicable Closing Date an opinion of the General Counsel of the Company, dated such Applicable Closing Date, in the form attached hereto as Exhibit F.
(vii) The Underwriters shall have received on each Applicable Closing Date an opinion 10b-5 statement of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, outside counsel for the Company and the Selling Shareholder and (ii) CMS ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, special Scottish counsel for the Selling Shareholder, in each case dated the Closing Date, with respect to such matters and in such form as is reasonably satisfactory to the Representatives. The opinions of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP and CMS ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP described in this Section 6(f) shall be rendered to the Underwriters at the request of the Company or the Selling Shareholder, as the case may be, and shall so state therein.
(g) The Underwriters shall have received on the Closing Date an opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Executive Vice President, General Counsel and Chief Legal Officer of the Company, with respect to such matters and in such form as is reasonably satisfactory to the Representatives.
(h) The Underwriters shall have received on the Closing Date an opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, dated such Applicable the Closing Date, with respect to such matters and in such form and substance as is reasonably satisfactory to the UnderwritersRepresentatives, and the Company and the Selling Shareholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(viiii) The Underwriters shall have received, on each of the date hereof and on each Applicable the Closing Date, a letter dated the date hereof or such Applicable the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Ernst Deloitte & Young GmbH WirtschaftsprüfungsgesellschaftTouche LLP, independent registered public accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the Time of Sale Prospectus and the Prospectus; Prospectus; provided that the letter delivered on such Applicable the Closing Date shall use a “cut-off date” not earlier than three business days prior to such Applicable Closing Datethe date hereof.
(ixj) The “lockLock-up” agreementsUp Agreements, each substantially in the form of Exhibit A hereto, between you and the officers and directors of the Company and other persons listed on Schedule V hereto, IV hereto relating to sales and certain other dispositions of shares of Common Shares Stock or Related Securitiescertain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Applicable Closing Date.
(xk) On the Applicable Closing Date, the Representatives The Underwriters shall receive a written certificate executed by an authorized person of each Selling Shareholder, dated have received such other documents as of such Applicable Closing Date, you may reasonably request with respect to other matters related to the effect that:sale of the Shares.
(Al) The several obligations of the representations, Underwriters to purchase Additional Shares hereunder are subject to the representations and warranties of the Company and covenants of such the Selling Shareholder set forth contained in Section 2 or 3 of this Agreement, as applicable, are Agreement being true and correct as of such Applicable the date hereof and as of the applicable Option Closing Date; and
(B) such Date, the compliance by each of the Company and the Selling Shareholder has complied with all of the agreements and satisfied satisfaction of all of the conditions on its part to be performed or satisfied hereunder on or before the applicable Option Closing Date and the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate, dated the Option Closing Date and signed by an executive officer of the Company, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Applicable Option Closing Date.;
(xiii) The Underwriters shall have receiveda certificate, dated the Option Closing Date and signed by an executive officer of the Selling Shareholder, confirming that the certificate delivered on the Applicable Closing Date pursuant to Section 6(e) hereof remains true and correct as of such Option Closing Date;
(iii) (i) an opinion and 10b-5 letter of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, copies of outside counsel for the Custody Agreement entered into by Company and the Selling Shareholder, and (ii) CMS ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, special Scottish counsel for the Selling Shareholder, in each Luxco Seller and American Stock Transfer & Trust Company, LLC, as Custodiancase dated the Option Closing Date, relating to the Additional Shares to be sold by such Luxco Seller purchased on such Applicable Option Closing Date and otherwise to the same effect as the opinions required by Section 6(f) hereof;
(iv) an opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Executive Vice President, General Counsel and Chief Legal Officer of the Company, dated the Option Closing Date, which Custody Agreement relating to the Additional Shares to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(g) hereof;
(v) an opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Underwriters, dated the Option Closing Date, relating to the Additional Shares to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(h) hereof;
(vi) a letter dated the Option Closing Date, in form and substance satisfactory to the Underwriters, from Deloitte & Touch LLP, independent public accountants, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(i) hereof; provided that the letter delivered on the Option Closing Date shall be in full force and effectuse a “cut-off date” not earlier than three business days prior to such Option Closing Date; and
(vii) such other documents as you may commercially reasonably request with respect to other matters related to the sale of the Shares.
Appears in 1 contract
Sources: Underwriting Agreement (Citizens Financial Group Inc/Ri)
Conditions to Obligations. The obligations of the Selling Shareholders to sell the Shares to the Underwriters Buyer and the several obligations Transitory Subsidiary. The obligation of each of the Underwriters Buyer and the Transitory Subsidiary to purchase and pay for consummate the Shares on an Applicable Closing Date are Merger is subject to the condition that satisfaction (or waiver by the Share Transfer shall have occurred not later than Buyer) of the Closing Date.following additional conditions:
(a) The several obligations the Buyer shall have received written representations by the Company's chief executive officer and chief financial officer to the Buyer's independent auditors as required by standards of the Underwriters are subject American Institute of Certified Public Accountants with respect to the following further conditions:Company's financial statements for the fiscal year ended December 31, 2002 and the nine months ended September 30, 2003;
(b) the Company shall have (i) Subsequent obtained (and provided copies thereof to the execution and delivery of this Agreement and prior to each Applicable Closing Date:
(ABuyer) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction all of the possible changewaivers, in the rating accorded any permits, consents, approvals or other authorizations, and effected all of the securities registrations, filings and notices, listed in Schedule 5.2(b)(i) and (ii) obtained (and provided copies thereof to the Buyer) any other waivers, permits, consents, approvals or other authorizations, and effected all other registrations, filings and notices which, if not obtained or effected, would reasonably be expected to result in a material adverse effect on the assets, business, financial condition, results of operations or prospects of the Company (it being understood that the failure to obtain or effect any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) or all of the Exchange Act; and
(Bwaivers, permits, consents, approvals or other authorizations, and to have effected all of the registrations, filings and notices listed in Schedule 5.2(c)(ii) there shall would not have occurred any changereasonably be expected to result in a material adverse effect on the assets, or any development involving a prospective changebusiness, in the financial condition, financial results of operations or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(ii) The Underwriters shall have received on each Applicable Closing Date a certificate, dated such Applicable Closing Date and signed by an executive officer prospects of the Company, to the effect set forth in Section 7(a)(i)(A);
(c) above and to the effect that the representations and warranties of the Company contained set forth in the first sentence of Section 2.1 and in Section 2.3 and any representations and warranties of the Company set forth in this Agreement that are qualified as to materiality shall be true and correct, in all respects, and all other representations and warranties of the Company set forth in this Agreement shall be true and correct in all material respects, in each case as of the date of this Agreement and as of the Effective Time as though made as of the Effective Time, except to the extent such representations and warranties are specifically made as of a particular date or as of the date of this Agreement (in which case such representations and warranties shall be true and correct as of such Applicable Closing Date date);
(d) the Company shall have performed or complied with its agreements and covenants required to be performed or complied with under this Agreement as of or prior to the Effective Time;
(e) no action, suit or proceeding shall be pending or threatened by or before any Governmental Entity wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of the Merger or any of the other Transactions, (ii) cause the Merger or any of the other Transactions to be rescinded following consummation, or (iii) affect adversely the right of the Company to own, operate or control any of its assets or operations, and no such judgment, order, decree, stipulation or injunction shall be in effect;
(f) the Company shall have delivered to the Buyer and the Transitory Subsidiary a certificate (without qualification as to knowledge or materiality or otherwise) (the "Company Certificate") to the effect that each of the conditions specified in Section 5.1 and clauses (b) through (e) (insofar as clause (e) relates to actions, suits or proceedings involving the Company) of this Section 5.2 is satisfied in all respects;
(g) the Buyer shall have received Investment Representation Letters from Company Stockholders sufficient to demonstrate that that the Company has complied with all of no more than 35 unaccredited investors and the agreements and satisfied all of Buyer shall have no reason to believe that the conditions on its part to be performed or satisfied hereunder on or before such Applicable Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.statements set forth therein are not true;
(iiih) The Underwriters the Buyer shall have received on each Applicable Closing Date from counsel to the Company an opinion and letter of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, U.S. counsel for the Company, dated such Applicable Closing Date, in the form attached hereto as Exhibit B and Exhibit C respectively.D, addressed to the Buyer dated as of the Closing Date;
(ivi) The Underwriters the Buyer shall have received on copies of the resignations, effective as of the Effective Time, of each Applicable Closing Date an opinion director and officer of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, Luxembourg counsel for the Company (other than any such resignations which the Buyer designates, by written notice to the Company, as unnecessary);
(j) each Company Stockholder listed on Schedule 5.2(j)(A) shall have entered into non-competition and Kinove Holdings, dated such Applicable Closing Date, non-solicitation agreements with the Buyer in substantially the form attached hereto as Exhibit D-1 E and each Company Stockholder listed on Schedule 5.2(j)(B) shall have entered into an opinion of NautaDutilh Avocats Luxembourg S.à ▇.▇., with respect amendment to the Luxco Sellers, his or her non-competition and non-solicitation agreement in substantially the form attached hereto as Exhibit D-2.F;
(vk) The Underwriters all employment agreements (other than at will employment agreements) for employees of the Company shall have been terminated on terms and conditions reasonably acceptable to the Buyer and all employees of the Company entitled to any bonus under any Company bonus plan other than the plan described in Section 4.9 of this Agreement shall have irrevocably waived the right to receive such bonus;
(l) the Company shall have terminated or received a waiver on the restrictions on transfer set forth in the Company's Second Amended and Restated Stockholders' Agreement;
(m) the Company shall have delivered to the Buyer evidence satisfactory to the Buyer that all outstanding Options, Warrants or other rights to purchase Company Shares or other equity interests in the Company have been exercised in full or terminated effective immediately prior to the Effective Time;
(n) the Company shall have delivered to the Buyer evidence satisfactory to the Buyer that all incentive compensation, bonus or similar payments (other than the Closing Payments) accrued for periods prior to the Closing Date shall have been paid or the recipient of such payments shall have irrevocably waived the right thereto; and
(o) the Buyer shall have received on each Applicable Closing Date an opinion such other certificates and instruments (including without limitation certificates of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, dated such Applicable Closing Date, in the form attached hereto as Exhibit E.
(vi) The Underwriters shall have received on each Applicable Closing Date an opinion of the General Counsel of the Company, dated such Applicable Closing Date, in the form attached hereto as Exhibit F.
(vii) The Underwriters shall have received on each Applicable Closing Date an opinion of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, dated such Applicable Closing Date, in form and substance reasonably satisfactory to the Underwriters.
(viii) The Underwriters shall have received, on each of the date hereof and on each Applicable Closing Date, a letter dated the date hereof or such Applicable Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Ernst & Young GmbH Wirtschaftsprüfungsgesellschaft, independent registered public accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the Time of Sale Prospectus and the Prospectus; provided that the letter delivered on such Applicable Closing Date shall use a “cut-off date” not earlier than three business days prior to such Applicable Closing Date.
(ix) The “lock-up” agreements, each substantially in the form of Exhibit A hereto, between you and the officers and directors good standing of the Company in its jurisdiction of organization and other persons listed on Schedule V heretothe various foreign jurisdictions in which it is qualified, relating to sales and certain other dispositions of Common Shares or Related Securitiescertified charter documents, delivered to you on or before the date hereof, shall be in full force and effect on the Applicable Closing Date.
(x) On the Applicable Closing Date, the Representatives shall receive a written certificate executed by an authorized person of each Selling Shareholder, dated certificates as of such Applicable Closing Date, to the effect that:
(Aincumbency of officers and the adoption of authorizing resolutions) as it shall reasonably request in connection with the representations, warranties and covenants of such Selling Shareholder set forth in Section 2 or 3 of this Agreement, as applicable, are true and correct as of such Applicable Closing Date; and
(B) such Selling Shareholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder on or before such Applicable Closing DateClosing.
(xi) The Underwriters shall have received, on the Applicable Closing Date, copies of the Custody Agreement entered into by each Luxco Seller and American Stock Transfer & Trust Company, LLC, as Custodian, relating to the Shares to be sold by such Luxco Seller on such Applicable Closing Date, which Custody Agreement shall be in full force and effect.
Appears in 1 contract
Sources: Merger Agreement (Vitalworks Inc)