Conditions to the Obligations of the Managers. The obligations of each Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time of Delivery, (ii) to the performance by the Company of its obligations hereunder and (iii) the following additional conditions: (a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b) with respect to any sale of Shares; each Interim Prospectus Supplement shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(s) of this Agreement; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (b) The Managers shall have received the written opinion and negative assurance letter of Company Counsel required pursuant to Section 4(k) on or before the date on which such opinion and negative assurance letters are required pursuant to Section 4(k). In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Managers and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Settlement Date. (c) The Managers shall have received from ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Managers, its written opinion and negative assurance letter required pursuant to Section 4(l) on or before the date on which such opinion and negative assurance letters are required pursuant to Section 4(l), and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (d) The Managers shall have received from the Company the certificate required pursuant to Section 4(j) on or before the date on which such certificate is required pursuant to Section 4(j). (e) The Managers shall have received the comfort letter of PricewaterhouseCoopers LLC required to be delivered pursuant to Section 4(m) on or before the date on which such delivery of such comfort letters are required pursuant to Section 4(m). (f) The Managers shall have received the comfort letter of ▇▇▇▇▇▇▇▇ LLP required to be delivered pursuant to Section 4(n) on or before the date on which such delivery of such comfort letters are required pursuant to Section 4(n). (g) The Managers shall have received the comfort letter of ▇▇▇▇▇ & ▇▇▇▇▇ LLP required to be delivered pursuant to Section 4(o) on or before the date on which such delivery of such comfort letters are required pursuant to Section 4(o). (h) The Managers shall have received the CFO Certificate required to be delivered pursuant to Section 4(p) on or before the date on which such delivery of such CFO Certificate on or before the date on which such delivery of such comfort letters are required pursuant to Section 4(p). (i) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement. (j) The Shares shall have been listed and admitted and authorized for trading on Nasdaq, and satisfactory evidence of such actions shall have been provided to the Managers. (k) Prior to each Settlement Date and Time of Delivery, as applicable, the Company shall have furnished to the Managers such further information, certificates and documents as the Managers may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Managers and counsel for the Managers, this Agreement and all obligations of the Managers hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the Managers. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Managers, at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, on each such date as provided in this Agreement.
Appears in 2 contracts
Sources: Equity Distribution Agreement (Soundhound Ai, Inc.), Equity Distribution Agreement (Soundhound Ai, Inc.)
Conditions to the Obligations of the Managers. The obligations of each Manager the Managers under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time of Delivery, (ii) to the performance by the Company of its obligations hereunder and (iii) the following additional conditions:
(a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b) with respect to any sale of Shares; each Interim Prospectus Supplement shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(s4(r) of this Agreement; any material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose or pursuant to Section 8A of the Act shall have been instituted or threatened.
(b) The Managers Company shall have received requested and caused Company Counsel to furnish to the Managers, on every date specified in Section 4(l) of this Agreement, its written opinion and negative assurance letter of Company Counsel required pursuant to Section 4(k) on or before the date on which such opinion 10b-5 statement, in form and negative assurance letters are required pursuant to Section 4(k). In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Delaware or the Federal laws of the United States, substance satisfactory to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Managers and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Settlement DateManagers.
(c) The Company shall have requested and caused Intellectual Property Counsel to furnish to the Managers, on each date specified in Section 4(m) of this Agreement, its written opinion addressed to the Managers, in form and substance satisfactory to the Managers.
(d) The Managers shall have received from ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Managers, its written opinion and negative assurance letter required pursuant to on every date specified in Section 4(l4(n) on or before the date on which of this Agreement, such opinion or opinions and negative assurance letters are required pursuant disclosure letter or letters, dated as of such date and addressed to Section 4(l)the Managers, with respect to the issuance and sale of the Shares, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Managers may reasonably require, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(de) The Managers Company shall have received from furnished or caused to be furnished to the Managers, on every date specified in Section 4(k) of this Agreement, a certificate of the Company, signed by the chief executive officer or the President of the Company and chief financial or chief accounting officer of the Company, , dated as of such date, to the effect that the signers of such certificate required have carefully examined the Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that:
(i) the Company has received no stop order suspending the effectiveness of the Registration Statement, and no proceedings for such purpose or pursuant to Section 4(j8A of the Act have been instituted or, to the Company’s knowledge, threatened by the Commission;
(ii) on or before since the date on which such certificate is required pursuant to of the most recent financial statements included in the Prospectus and the Disclosure Package, there has been no event or condition of a type described in Section 4(j2(k) hereof (a “Material Adverse Change”)., except as set forth in or contemplated in the Disclosure Package and the Prospectus;
(eiii) The Managers shall the representations, warranties and covenants set forth in Section 2 of this Agreement are true and correct with the same force and effect as though expressly made on and as of such date; and
(iv) the Company and its subsidiaries have received complied with all the comfort letter of PricewaterhouseCoopers LLC required agreements hereunder and satisfied all the conditions on its part to be delivered pursuant performed or satisfied hereunder at or prior to Section 4(m) on or before the date on which such delivery of such comfort letters are required pursuant to Section 4(m)date.
(f) The Managers Company shall have received requested and caused the Accountants to have furnished to the Managers, on every date specified in Section 4(o) hereof and to the extent requested by the Managers in connection with any offering of the Shares, letters (which may refer to letters previously delivered to the Managers), dated as of such date, in form and substance satisfactory to the Managers, which letters shall cover, without limitation, the various financial statements and disclosures contained in the Registration Statement, the Disclosure Package and the Prospectus and other matters ordinarily covered by accountants’ “comfort letter letters” to underwriters in connection with registered public offerings as contemplated in the Statement on Auditing Standards No. 72, as well as confirming that they have performed a review of ▇▇▇▇▇▇▇▇ LLP required any unaudited interim financial information of the Company included in the Registration Statement, the Disclosure Package and the Prospectus in accordance with Statement on Auditing Standards No. 100. References to be delivered pursuant to Section 4(nthe Prospectus in this paragraph (e) on or before include any supplement thereto at the date on which such delivery of such comfort letters are required pursuant to Section 4(n)the letter.
(g) The Managers Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, there shall not have received been (i) any change or decrease specified in the comfort letter or letters referred to in paragraph (e) of ▇▇▇▇▇ & ▇▇▇▇▇ LLP required this Section 6 or (ii) Material Adverse Change, except as set forth in or contemplated in the Disclosure Package (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to be delivered pursuant in clause (i) or (ii) above, is, in the sole judgment of the Managers, so material and adverse as to Section 4(o) on make it impractical or before inadvisable to proceed with the date on which such offering or delivery of such comfort letters are required pursuant to Section 4(othe Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(h) The Managers shall have received the CFO Certificate required to be delivered pursuant to Section 4(p) on or before the date on which such delivery of such CFO Certificate on or before the date on which such delivery of such comfort letters are required pursuant to Section 4(p).
(i) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement.
(ji) The Shares shall have been listed and admitted and authorized for trading on Nasdaqthe NASDAQ, and satisfactory evidence of such actions shall have been provided to the Managers.
(kj) Prior to each Settlement Date and Time of Delivery, as applicable, the Company shall have furnished to the Managers Designated Manager such further information, certificates and documents as the Managers Designated Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Managers and counsel for the Managers, this Agreement and all obligations of the Managers applicable Manager hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the Managerssuch Manager with respect to itself only. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. Following any such cancellation by a Manager, this Agreement shall remain in effect as to the other Manager that has not exercised its right to cancel this Agreement pursuant to this Section 6 and any obligations and rights of the Managers under this Agreement shall be satisfied by or afforded to only such other Manager. The documents required to be delivered by this Section 6 shall be delivered at the office of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Managers, at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, on each such date as provided in this Agreement.
Appears in 2 contracts
Sources: Equity Distribution Agreement (Denali Therapeutics Inc.), Equity Distribution Agreement (Denali Therapeutics Inc.)
Conditions to the Obligations of the Managers. The obligations of each Manager the Managers under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time of Delivery, (ii) to the performance by the Company of its obligations hereunder and (iii) the following additional conditions:
(a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b) with respect to any sale of Shares; each Interim Prospectus Supplement shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(s4(r) of this Agreement; any material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods #95429626v5 #95429626v9 prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose or pursuant to Section 8A of the Act shall have been instituted or threatened.
(b) The Managers Company shall have received requested and caused Company Counsel to furnish to the Managers, on every date specified in Section 4(l) of this Agreement, its written opinion and negative assurance letter of Company Counsel required pursuant to Section 4(k) on or before the date on which such opinion 10b-5 statement, in form and negative assurance letters are required pursuant to Section 4(k). In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Delaware or the Federal laws of the United States, substance satisfactory to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Managers and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Settlement DateManagers.
(c) The Company shall have requested and caused Intellectual Property Counsel to furnish to the Managers, on each date specified in Section 4(m) of this Agreement, its written opinion addressed to the Managers, in form and substance satisfactory to the Managers.
(d) The Managers shall have received from ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Managers, its written opinion and negative assurance letter required pursuant to on every date specified in Section 4(l4(n) on or before the date on which of this Agreement, such opinion or opinions and negative assurance letters are required pursuant disclosure letter or letters, dated as of such date and addressed to Section 4(l)the Managers, with respect to the issuance and sale of the Shares, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Managers may reasonably require, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(de) The Managers Company shall have received from furnished or caused to be furnished to the Managers, on every date specified in Section 4(k) of this Agreement, a certificate of the Company, signed by the chief executive officer or the President of the Company and chief financial or chief accounting officer of the Company, , dated as of such date, to the effect that the signers of such certificate required have carefully examined the Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that:
(i) the Company has received no stop order suspending the effectiveness of the Registration Statement, and no proceedings for such purpose or pursuant to Section 4(j8A of the Act have been instituted or, to the Company’s knowledge, threatened by the Commission;
(ii) on or before since the date on which such certificate is required pursuant to of the most recent financial statements included in the Prospectus and the Disclosure Package, there has been no event or condition of a type described in Section 4(j2(k) hereof (a “Material Adverse Change”)., except as set forth in or contemplated in the Disclosure Package and the Prospectus;
(eiii) The Managers shall the representations, warranties and covenants set forth in Section 2 of this Agreement are true and correct with the same force and effect as though expressly made on and as of such date; and
(iv) the Company and its subsidiaries have received complied with all the comfort letter of PricewaterhouseCoopers LLC required agreements hereunder and satisfied all the conditions on its part to be delivered pursuant performed or satisfied hereunder at or prior to Section 4(m) on or before the date on which such delivery of such comfort letters are required pursuant to Section 4(m).date. #95429626v5 #95429626v9
(f) The Managers Company shall have received requested and caused the Accountants to have furnished to the Managers, on every date specified in Section 4(o) hereof and to the extent requested by the Managers in connection with any offering of the Shares, letters (which may refer to letters previously delivered to the Managers), dated as of such date, in form and substance satisfactory to the Managers, which letters shall cover, without limitation, the various financial statements and disclosures contained in the Registration Statement, the Disclosure Package and the Prospectus and other matters ordinarily covered by accountants’ “comfort letter letters” to underwriters in connection with registered public offerings as contemplated in the Statement on Auditing Standards No. 72, as well as confirming that they have performed a review of ▇▇▇▇▇▇▇▇ LLP required any unaudited interim financial information of the Company included in the Registration Statement, the Disclosure Package and the Prospectus in accordance with Statement on Auditing Standards No. 100. References to be delivered pursuant to Section 4(nthe Prospectus in this paragraph (e) on or before include any supplement thereto at the date on which such delivery of such comfort letters are required pursuant to Section 4(n)the letter.
(g) The Managers Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, there shall not have received been (i) any change or decrease specified in the comfort letter or letters referred to in paragraph (e) of ▇▇▇▇▇ & ▇▇▇▇▇ LLP required this Section 6 or (ii) Material Adverse Change, except as set forth in or contemplated in the Disclosure Package (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to be delivered pursuant in clause (i) or (ii) above, is, in the sole judgment of the Managers, so material and adverse as to Section 4(o) on make it impractical or before inadvisable to proceed with the date on which such offering or delivery of such comfort letters are required pursuant to Section 4(othe Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(h) The Managers shall have received the CFO Certificate required to be delivered pursuant to Section 4(p) on or before the date on which such delivery of such CFO Certificate on or before the date on which such delivery of such comfort letters are required pursuant to Section 4(p).
(i) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement.
(ji) The Shares shall have been listed and admitted and authorized for trading on Nasdaqthe NASDAQ, and satisfactory evidence of such actions shall have been provided to the Managers.
(kj) Prior to each Settlement Date and Time of Delivery, as applicable, the Company shall have furnished to the Managers Designated Manager such further information, certificates and documents as the Managers Designated Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Managers and counsel for the Managers, this Agreement and all obligations of the Managers applicable Manager hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the Managerssuch Manager with respect to itself only. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. Following any such cancellation by a Manager, this Agreement shall remain in effect as to the other Manager that has not exercised its right to cancel this Agreement pursuant to this Section 6 #95429626v5 #95429626v9 and any obligations and rights of the Managers under this Agreement shall be satisfied by or afforded to only such other Manager. The documents required to be delivered by this Section 6 shall be delivered at the office of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Managers, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, on each such date as provided in this Agreement.
Appears in 2 contracts
Sources: Equity Distribution Agreement (Denali Therapeutics Inc.), Equity Distribution Agreement (Denali Therapeutics Inc.)
Conditions to the Obligations of the Managers. The obligations of each Manager the Managers under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time of Delivery, (ii) to the performance by the Company of its obligations hereunder and (iii) the following additional conditions:
(a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b) with respect to any sale of Shares; each Interim Prospectus Supplement shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(s4(r) of this Agreement; any material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose or pursuant to Section 8A of the Act shall have been instituted or threatened.
(b) The Managers shall have received the written opinion and negative assurance letter of Company Counsel required pursuant to Section 4(k) on or before the date on which such opinion and negative assurance letters are required pursuant to Section 4(k). In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Managers and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the The Company and public officials. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Settlement Date.
(c) The Managers shall have received from ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for requested and caused Company Counsel to furnish to the Managers, its written opinion and negative assurance letter required pursuant to Section 4(l) on or before the every date on which such opinion and negative assurance letters are required pursuant to Section 4(l), and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Managers shall have received from the Company the certificate required pursuant to Section 4(j) on or before the date on which such certificate is required pursuant to Section 4(j).
(e) The Managers shall have received the comfort letter of PricewaterhouseCoopers LLC required to be delivered pursuant to specified in Section 4(m) on or before the date on which such delivery of such comfort letters are required pursuant to Section 4(m).
(f) The Managers shall have received the comfort letter of ▇▇▇▇▇▇▇▇ LLP required to be delivered pursuant to Section 4(n) on or before the date on which such delivery of such comfort letters are required pursuant to Section 4(n).
(g) The Managers shall have received the comfort letter of ▇▇▇▇▇ & ▇▇▇▇▇ LLP required to be delivered pursuant to Section 4(o) on or before the date on which such delivery of such comfort letters are required pursuant to Section 4(o).
(h) The Managers shall have received the CFO Certificate required to be delivered pursuant to Section 4(p) on or before the date on which such delivery of such CFO Certificate on or before the date on which such delivery of such comfort letters are required pursuant to Section 4(p).
(i) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement.
(j) The Shares shall have been listed and admitted and authorized for trading on Nasdaq, and satisfactory evidence of such actions shall have been provided to the Managers.
(k) Prior to each Settlement Date and Time of Delivery, as applicable, the Company shall have furnished to the Managers such further information, certificates and documents as the Managers may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of opinions collectively covering the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in the form and substance to the Managers and counsel for the Managers, this Agreement and all obligations of the Managers hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, which are attached as applicable, by the Managers. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Managers, at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, on each such date as provided in this Agreement.Exhibit A.
Appears in 2 contracts
Sources: Equity Distribution Agreement (Prologis, L.P.), Equity Distribution Agreement (Prologis, Inc.)
Conditions to the Obligations of the Managers. The obligations of each Manager the Managers under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time of Delivery, (ii) to the performance by the Company of its obligations hereunder and (iii) the following additional conditions:
(a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b) with respect to any sale of Shares; each Interim Prospectus Supplement Supplement, if any, shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(s3(a)(ix) of this Agreement; any material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Managers Company shall have received requested and caused the written opinion and negative assurance letter Company Counsel, to furnish to the Managers, on every date specified in Section 4(l) of Company Counsel required pursuant to Section 4(k) on or before the date on which such opinion and negative assurance letters are required pursuant to Section 4(k). In rendering such this Agreement, its opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Delaware or the Federal laws of the United States, in form and substance reasonably satisfactory to the extent they deem proper Managers and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Managers and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Settlement DateManagers.
(c) The Managers shall have received from ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Managers, its written opinion and negative assurance letter required pursuant to on every date specified in Section 4(l4(m) on or before the date on which of this Agreement, such opinion or opinions, dated as of such date and negative assurance letters are required pursuant addressed to Section 4(l)the Manager, with respect to the issuance and sale of the Shares, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Manager may reasonably require, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(d) The Managers Company shall have received from furnished or caused to be furnished to the Managers, on every date specified in Section 4(k) of this Agreement, a certificate of the Company, signed by the President or Chief Executive Officer and the principal financial or accounting officer of the Company, dated as of such date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of such date with the certificate required pursuant same effect as if made on such date and the Company has complied with all the agreements and satisfied all the conditions on its part to Section 4(jbe performed or satisfied at or prior to such date;
(ii) on no stop order suspending the effectiveness of the Registration Statement or before any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package, there has been no material adverse effect on which such certificate is required pursuant to Section 4(jthe condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus.
(e) The Managers Company shall have received requested and caused the comfort letter Accountants to have furnished to the Managers, on every date specified in Section 4(n) hereof and to the extent requested by the Managers in connection with any offering of PricewaterhouseCoopers LLC required the Shares, letters (which may refer to be letters previously delivered pursuant to Section 4(m) on or before the date on which such delivery Managers), dated as of such date in form and substance reasonably satisfactory to the Managers containing statements and information of the type ordinarily included in accountants’ “comfort letters are required pursuant letters” to Section 4(m)underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Prospectus.
(f) The Managers Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, there shall not have received been (i) any change or decrease specified in the comfort letter or letters referred to in paragraph (e) of ▇▇▇▇▇▇▇▇ LLP required this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package, the effect of which, in any case referred to be delivered pursuant in clause (i) or (ii) above, is, in the sole judgment of the Managers, so material and adverse as to Section 4(n) on make it impractical or before inadvisable to proceed with the date on which such offering or delivery of such comfort letters are required pursuant to Section 4(n)the Shares as contemplated by the Registration Statement, the Disclosure Package and the Prospectus.
(g) The Managers Company shall have received the comfort letter of ▇▇▇▇▇ & ▇▇▇▇▇ LLP required furnished or caused to be delivered pursuant furnished to the Managers, on every date specified in Section 4(o) on or before of this Agreement, a certificate, signed by the date on which such delivery Chief Financial Officer of the Company, dated as of such comfort letters are required pursuant date, providing “management comfort” with respect to Section 4(o)certain financial data included or incorporated by reference in the Disclosure Package and the Prospectus.
(h) The Managers Between the Execution Time and the time of any sale of Shares through the Manager, there shall not have received been any decrease in the CFO Certificate required to be delivered pursuant to Section 4(prating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) on under the Securities Act) or before any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the date on which such delivery direction of such CFO Certificate on or before the date on which such delivery of such comfort letters are required pursuant to Section 4(p)possible change.
(i) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement.
(j) The Shares shall have been listed and admitted and authorized for trading on Nasdaqthe NYSE, and satisfactory evidence of such actions shall have been provided to the Managers.
(k) Prior to each Settlement Date and Time of Delivery, as applicable, the Company shall have furnished to the Designated Managers such further information, certificates and documents as the Managers Designated Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Managers and counsel for the Managers, this Agreement and all obligations of the Managers applicable Manager hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the Managerssuch Manager. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Managers, at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, on each such date as provided in this Agreement.
Appears in 2 contracts
Sources: Equity Distribution Agreement (Amc Entertainment Holdings, Inc.), Equity Distribution Agreement (Amc Entertainment Holdings, Inc.)
Conditions to the Obligations of the Managers. The obligations of each Manager the Managers under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time of Delivery, (ii) to the performance by the Company of its obligations hereunder and (iii) the following additional conditions:
(a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission shall have been filed in the manner and within the time period required by Rule 424(b) with respect to any sale of Shares; each Interim Prospectus Supplement shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(s4(q) of this Agreement; any material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose or pursuant to Section 8A of the Act shall have been instituted or threatened.
(b) The Managers Company shall have received the written opinion requested and negative assurance letter of caused Company Counsel required pursuant to Section 4(k) on or before the date on which such opinion and negative assurance letters are required pursuant to Section 4(k). In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Delaware or the Federal laws of the United States, furnish to the extent they deem proper and Managers, on every date specified in such opinionSection 4(l) of this Agreement, upon opinions collectively covering the opinion opinions the form of other counsel of good standing whom they believe to be reliable and who which are satisfactory to counsel for the Managers and (B) attached as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Settlement Date.Exhibit A.
(c) The Managers shall have received from C▇▇▇▇▇ ▇, H▇▇▇ & ▇▇S▇▇▇▇▇▇ LLP, counsel for the Managers, its written opinion and negative assurance letter required pursuant to on every date specified in Section 4(l4(m) on or before the date on which of this Agreement, such opinion or opinions and negative assurance letters are required pursuant disclosure letter or letters, dated as of such date and addressed to Section 4(l)the Managers, with respect to the issuance and sale of the Shares, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Managers may reasonably require, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(d) The Managers Company shall have received from furnished or caused to be furnished to the Managers, on every date specified in Section 4(k) of this Agreement, a certificate of the Company, signed by the Treasurer of the Company and the Assistant Treasurer of the Company, dated as of such date, to the effect that the signers of such certificate required have carefully examined the Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that:
(i) the Company has received no stop order suspending the effectiveness of the Registration Statement, and no proceedings for such purpose or pursuant to Section 4(j8A of the Act have been instituted or, to the Company’s knowledge, threatened by the Commission;
(ii) on or before since the date of the most recent financial statements included in the Prospectus and the Disclosure Package, there has been no event or condition of a type described in Section 2(l) hereof (a “Material Adverse Change”), except as set forth in or contemplated in the Disclosure Package and the Prospectus;
(iii) the representations, warranties and covenants set forth in Section 2 of this Agreement are true and correct with the same force and effect as though expressly made on which and as of such certificate is required pursuant date; and
(iv) the Company has complied with all the agreements hereunder and satisfied all the conditions on its part to Section 4(j)be performed or satisfied hereunder at or prior to such date.
(e) The Managers Company shall have received requested and caused the Accountants to have furnished to the Managers, on every date specified in Section 4(n) hereof and to the extent requested by the Managers in connection with any offering of the Shares, letters (which may refer to letters previously delivered to the Managers), dated as of such date, in form and substance satisfactory to the Managers, which letters shall cover, without limitation, the various financial statements and disclosures contained in the Registration Statement, the Disclosure Package and the Prospectus and other matters ordinarily covered by accountants’ “comfort letter letters” to underwriters in connection with registered public offerings as contemplated in the Statement on Auditing Standards No. 72, as well as confirming that they have performed a review of PricewaterhouseCoopers LLC required any unaudited interim financial information of the Company included in the Registration Statement, the Disclosure Package and the Prospectus in accordance with Statement on Auditing Standards No. 100. References to be delivered pursuant to Section 4(mthe Prospectus in this paragraph (e) on or before include any supplement thereto at the date on which such delivery of such comfort letters are required pursuant to Section 4(m)the letter.
(f) The Managers Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, there shall not have received been (i) any change or decrease specified in the comfort letter or letters referred to in paragraph (e) of ▇▇▇▇▇▇▇▇ LLP required this Section 6 or (ii) Material Adverse Change, except as set forth in or contemplated in the Disclosure Package (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to be delivered pursuant in clause (i) or (ii) above, is, in the sole judgment of the Managers, so material and adverse as to Section 4(n) on make it impractical or before inadvisable to proceed with the date on which such offering or delivery of such comfort letters are required pursuant to Section 4(nthe Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(g) The Managers shall have received the comfort letter of ▇▇▇▇▇ & ▇▇▇▇▇ LLP required to be delivered pursuant to Section 4(o) on or before the date on which such delivery of such comfort letters are required pursuant to Section 4(o).
(h) The Managers shall have received the CFO Certificate required to be delivered pursuant to Section 4(p) on or before the date on which such delivery of such CFO Certificate on or before the date on which such delivery of such comfort letters are required pursuant to Section 4(p).
(i) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement.
(jh) The Shares shall have been listed and admitted and authorized for trading on Nasdaqthe NYSE, and satisfactory evidence of such actions shall have been provided to the Managers.
(ki) Prior to each Settlement Date and Time of Delivery, as applicable, the Company shall have furnished to the Managers Designated Manager such further information, certificates and documents as the Managers Designated Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Managers and counsel for the Managers, this Agreement and all obligations of the Managers applicable Manager hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the Managerssuch Manager with respect to itself only. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. Following any such cancellation by a Manager, this Agreement shall remain in effect as to the other Manager that has not exercised its right to cancel this Agreement pursuant to this Section 6 and any obligations and rights of the Managers under this Agreement shall be satisfied by or afforded to only such other Manager. The documents required to be delivered by this Section 6 shall be delivered at the office of C▇▇▇▇▇ ▇, H▇▇▇ & ▇▇S▇▇▇▇▇▇ LLP, counsel for the Managers, at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇Boston, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇Massachusetts, on each such date as provided in this Agreement.
Appears in 1 contract
Conditions to the Obligations of the Managers. The obligations of each Manager the Managers under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time of Delivery, (ii) to the performance by the Company of its obligations hereunder and (iii) the following additional conditions:
(a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b) with respect to any sale of Shares; each Interim Prospectus Supplement shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(s4(r) of this Agreement; any material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Managers shall have received the written opinion and negative assurance letter of Company Counsel required pursuant to Section 4(k) on or before the date on which such opinion and negative assurance letters are required pursuant to Section 4(k). In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Delaware or the Federal laws of the United StatesThe Company shall have requested and caused Company Counsel, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe furnish to be reliable and who are satisfactory to counsel for the Managers and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Settlement Date.
(c) The Managers shall have received from ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Managers, its written opinion and negative assurance letter required pursuant to Section 4(l) on or before the every date on which such opinion and negative assurance letters are required pursuant to Section 4(l), and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Managers shall have received from the Company the certificate required pursuant to Section 4(j) on or before the date on which such certificate is required pursuant to Section 4(j).
(e) The Managers shall have received the comfort letter of PricewaterhouseCoopers LLC required to be delivered pursuant to specified in Section 4(m) on or before the date on which such delivery of this Agreement, its opinion, dated as of such comfort letters are required pursuant to Section 4(m).
(f) The Managers shall have received the comfort letter of ▇▇▇▇▇▇▇▇ LLP required to be delivered pursuant to Section 4(n) on or before the date on which such delivery of such comfort letters are required pursuant to Section 4(n).
(g) The Managers shall have received the comfort letter of ▇▇▇▇▇ & ▇▇▇▇▇ LLP required to be delivered pursuant to Section 4(o) on or before the date on which such delivery of such comfort letters are required pursuant to Section 4(o).
(h) The Managers shall have received the CFO Certificate required to be delivered pursuant to Section 4(p) on or before the date on which such delivery of such CFO Certificate on or before the date on which such delivery of such comfort letters are required pursuant to Section 4(p).
(i) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement.
(j) The Shares shall have been listed and admitted and authorized for trading on Nasdaq, and satisfactory evidence of such actions shall have been provided addressed to the Managers.
(k) Prior to each Settlement Date and Time of Delivery, in the form attached as applicable, the Company shall have furnished to the Managers such further information, certificates and documents as the Managers may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Managers and counsel for the Managers, this Agreement and all obligations of the Managers hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the Managers. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Managers, at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, on each such date as provided in this Agreement.Exhibit A.
Appears in 1 contract
Conditions to the Obligations of the Managers. The obligations of each Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Company Partnership contained herein as of the Execution Time, each Representation Date, Date and as of each Applicable Time, Settlement Date and Time of Delivery, (ii) to the performance by the Company Partnership of its obligations hereunder and (iii) the following additional conditions:
(a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b) with respect to any sale of SharesOffered Units; each Interim Prospectus Supplement shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(s3(a)(ix) of this Agreement; any material required to be filed by the Partnership pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Managers Partnership shall have received the written opinion requested and negative assurance letter of Company Counsel required pursuant to Section 4(k) on or before the date on which such opinion and negative assurance letters are required pursuant to Section 4(k). In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Managers and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Settlement Date.
(c) The Managers shall have received from caused ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLPto furnish to the Managers (or, in the case of a Representation Date of the type described in Section 4(k)(iii) of this Agreement, the relevant Manager party to such Terms Agreement), on every date specified in Section 4(l) of this Agreement, its opinion, dated as of such date and addressed to the Managers, in substantially the form set forth in Exhibit A hereto.
(c) The Partnership shall have requested and caused GableGotwals to furnish to the Managers (or, in the case of a Representation Date of the type described in Section 4(k)(iii) of this Agreement, the relevant Manager party to such Terms Agreement), on every date specified in Section 4(l) of this Agreement, its opinion, dated as of such date and addressed to the Managers, in substantially the form set forth in Exhibit B hereto.
(d) The Managers shall have received from Shearman & Sterling, counsel for the Managers (or, in the case of a Representation Date of the type described in Section 4(k)(iii) of this Agreement, the relevant Manager party to such Terms Agreement), on every date specified in Section 4(m) of this Agreement, such opinion or opinions, dated as of such date and addressed to the Managers, its written opinion with respect to the issuance and negative assurance letter required pursuant to Section 4(lsale of the Offered Units, the Registration Statement, the Disclosure Package, the Prospectus (together with any amendment or supplement thereto) on or before and other related matters as the date on which such opinion and negative assurance letters are required pursuant to Section 4(l)Managers may reasonably require, and the Company Partnership shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(de) The Managers Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, there shall not have received from been (i) any adverse change or decrease specified in the Company the certificate required pursuant letter or letters referred to Section 4(j) on or before the date on which such certificate is required pursuant to Section 4(j).
in paragraph (e) The Managers shall have received of this Section 6 or (ii) any adverse change, or any development involving a prospective adverse change, in or affecting the comfort letter business, properties, earnings, results of PricewaterhouseCoopers LLC required operations or financial condition of the Partnership and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to be delivered pursuant in clause (i) or (ii) above, is, in the sole judgment of the Managers, so material and adverse as to Section 4(m) on make it impractical or before inadvisable to proceed with the date on which such offering or delivery of such comfort letters are required pursuant to Section 4(mthe Offered Units as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(f) The Managers Partnership shall have received the comfort letter of ▇▇▇▇▇▇▇▇ LLP required furnished or caused to be delivered pursuant furnished to the Managers (or, in the case of a Representation Date of the type described in Section 4(n4(k)(iii) of this Agreement, the relevant Manager party to such Terms Agreement), on every date specified in Section 4(k) of this Agreement, a certificate of the Partnership, signed by the President and Chief Executive Officer and the principal financial or before accounting officer of the General Partner of the Partnership, dated as of such date, to the effect that the signers of such certificate have reviewed the Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that:
(i) subject to modification to incorporate the disclosures contained in the Registration Statement, the Disclosure Package and the Prospectus, and the documents incorporated by reference therein, in each case as amended or supplemented as of such date, the representations and warranties of the Partnership in Section 2 of this Agreement are true and correct on and as of such date with the same effect as if made on such date and the Partnership has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Partnership’s knowledge, threatened; and
(iii) since the date on which such delivery of such comfort letters are required pursuant to Section 4(n)the most recent financial statements included in the Disclosure Package, there has been no Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Prospectus.
(g) The Managers Partnership shall have received requested and caused the Accountants to have furnished to the Managers (or, in the case of a Representation Date of the type described in Section 4(k)(iii) of this Agreement, the relevant Manager party to such Terms Agreement), on every date specified in Section 4(n) hereof, letters (which may refer to letters previously delivered to the Managers), containing statements and information of the type ordinarily included in accountants “comfort letter letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the Interim Prospectus Supplements, the Prospectus and the Permitted Free Writing Prospectuses, if any, dated as of ▇▇▇▇▇ & ▇▇▇▇▇ LLP required such date, in form and substance satisfactory to the Managers or, in the case of Section 4(k)(iii), the relevant Manager party to such Terms Agreement; provided that the cut-off date for the procedures performed by such accountants and described in such letters shall be delivered pursuant a date not more than five days prior to Section 4(o) on or before the date on which such delivery of such comfort letters are required pursuant to Section 4(o)letter.
(h) The Managers Between the Execution Time and the time of any sale of Offered Units through any Manager, there shall not have received been any decrease in the CFO Certificate required to be delivered pursuant to rating of any of the Partnership’s debt securities by any “nationally recognized statistical rating organization” (as such term is defined in Section 4(p3(a)(62) on of the Exchange Act) or before any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the date on which such delivery direction of such CFO Certificate on or before the date on which such delivery of such comfort letters are required pursuant to Section 4(p)possible change.
(i) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement or any Terms Agreement.
(j) The Shares Offered Units shall have been listed and admitted and authorized for trading on Nasdaqthe NYSE, and satisfactory evidence of such actions shall have been provided to the Managers.
(k) Prior to each Settlement Date and Time of Delivery, as applicable, the Company Partnership shall have furnished to the Managers (or, in the case of a Representation Date of the type described in Section 4(k)(iii) of this Agreement, the relevant Manager party to such Terms Agreement) such further information, certificates and documents as the Managers such Manager(s) may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Managers and counsel for the Managers, this Agreement and all obligations of the Managers hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the Managers. Notice of such cancellation shall be given to the Company Partnership in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of ▇▇▇▇▇ ▇▇▇▇ Shearman & ▇▇▇▇▇▇▇▇ LLPSterling, counsel for the Managers, at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇599 ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, on ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇ each such date as provided in this Agreement.
Appears in 1 contract
Conditions to the Obligations of the Managers. The obligations of each Manager the Managers under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time of Delivery, (ii) to the performance by the Company of its obligations hereunder and (iii) the following additional conditions:
(a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission shall have been filed in the manner and within the time period required by Rule 424(b) with respect to any sale of Shares; each Interim Prospectus Supplement shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(s4(q) of this Agreement; any material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose or pursuant to Section 8A of the Act shall have been instituted or threatened.
(b) The Managers Company shall have received the written opinion requested and negative assurance letter of caused Company Counsel required pursuant to Section 4(k) on or before the date on which such opinion and negative assurance letters are required pursuant to Section 4(k). In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Delaware or the Federal laws of the United States, furnish to the extent they deem proper and Managers, on every date specified in such opinionSection 4(l) of this Agreement, upon opinions collectively covering the opinion opinions the form of other counsel of good standing whom they believe to be reliable and who which are satisfactory to counsel for the Managers and (B) attached as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Settlement Date.Exhibit A.
(c) The Managers shall have received from C▇▇▇▇▇ ▇, H▇▇▇ & ▇▇S▇▇▇▇▇▇ LLP, counsel for the Managers, its written opinion and negative assurance letter required pursuant to on every date specified in Section 4(l4(m) on or before the date on which of this Agreement, such opinion or opinions and negative assurance letters are required pursuant disclosure letter or letters, dated as of such date and addressed to Section 4(l)the Managers, with respect to the issuance and sale of the Shares, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Managers may reasonably require, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(d) The Managers There shall not have received from occurred any downgrading or withdrawal in the rating accorded to any of the Company’s securities or any securities of a subsidiary of the Company by any “nationally recognized statistical rating organization,” as such term is defined for purposes of Section 3(a)(62) of the certificate required pursuant to Section 4(j) on or before the date on which such certificate is required pursuant to Section 4(j)Exchange Act.
(e) The Managers Company shall have received the comfort letter of PricewaterhouseCoopers LLC required furnished or caused to be delivered furnished to the Managers, on every date specified in Section 4(k) of this Agreement, a certificate of the Company, signed by the Treasurer of the Company and the Assistant Treasurer of the Company, dated as of such date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that:
(i) the Company has received no stop order suspending the effectiveness of the Registration Statement, and no proceedings for such purpose or pursuant to Section 4(m8A of the Act have been instituted or, to the Company’s knowledge, threatened by the Commission;
(ii) on or before since the date of the most recent financial statements included in the Prospectus and the Disclosure Package, there has been no event or condition of a type described in Section 2(l) hereof (a “Material Adverse Change”), except as set forth in or contemplated in the Disclosure Package and the Prospectus;
(iii) the representations, warranties and covenants set forth in Section 2 of this Agreement are true and correct with the same force and effect as though expressly made on which such delivery and as of such comfort letters are required pursuant date; and
(iv) the Company has complied with all the agreements hereunder and satisfied all the conditions on its part to Section 4(m)be performed or satisfied hereunder at or prior to such date.
(f) The Managers Company shall have received requested and caused the comfort letter of ▇▇▇▇▇▇▇▇ LLP required Accountants to be delivered pursuant have furnished to the Managers, on every date specified in Section 4(n) hereof and to the extent requested by the Managers in connection with any offering of the Shares, letters (which may refer to letters previously delivered to the Managers), dated as of such date, in form and substance satisfactory to the Managers, which letters shall cover, without limitation, the various financial statements and disclosures contained in the Registration Statement, the Disclosure Package and the Prospectus and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings as contemplated in the Statement on or before Auditing Standards No. 72, as well as confirming that they have performed a review of any unaudited interim financial information of the Company included in the Registration Statement, the Disclosure Package and the Prospectus in accordance with Statement on Auditing Standards No. 100. References to the Prospectus in this paragraph (e) include any supplement thereto at the date on which such delivery of such comfort letters are required pursuant to Section 4(n)the letter.
(g) The Managers Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, there shall not have received been (i) any change or decrease specified in the comfort letter or letters referred to in paragraph (e) of ▇▇▇▇▇ & ▇▇▇▇▇ LLP required this Section 6 or (ii) Material Adverse Change, except as set forth in or contemplated in the Disclosure Package (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to be delivered pursuant in clause (i) or (ii) above, is, in the sole judgment of the Managers, so material and adverse as to Section 4(o) on make it impractical or before inadvisable to proceed with the date on which such offering or delivery of such comfort letters are required pursuant to Section 4(othe Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(h) The Managers shall have received the CFO Certificate required to be delivered pursuant to Section 4(p) on or before the date on which such delivery of such CFO Certificate on or before the date on which such delivery of such comfort letters are required pursuant to Section 4(p).
(i) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement.
(ji) The Shares shall have been listed and admitted and authorized for trading on Nasdaqthe NYSE, and satisfactory evidence of such actions shall have been provided to the Managers.
(kj) Prior to each Settlement Date and Time of Delivery, as applicable, the Company shall have furnished to the Managers Designated Manager such further information, certificates and documents as the Managers Designated Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Managers and counsel for the Managers, this Agreement and all obligations of the Managers applicable Manager hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the Managerssuch Manager with respect to itself only. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. Following any such cancellation by a Manager, this Agreement shall remain in effect as to the other Manager that has not exercised its right to cancel this Agreement pursuant to this Section 6 and any obligations and rights of the Managers under this Agreement shall be satisfied by or afforded to only such other Manager. The documents required to be delivered by this Section 6 shall be delivered at the office of C▇▇▇▇▇ ▇, H▇▇▇ & ▇▇S▇▇▇▇▇▇ LLP, counsel for the Managers, at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇Boston, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇Massachusetts, on each such date as provided in this Agreement.
Appears in 1 contract
Conditions to the Obligations of the Managers. The obligations of each Manager the Managers under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time of Delivery, (ii) to the performance by the Company of its obligations hereunder and (iii) the following additional conditions:
(a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b) with respect to any sale of Shares; each Interim Prospectus Supplement shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(s3(a)(ix) of this Agreement; any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Managers Company shall have received requested and caused the written opinion and negative assurance letter Company Counsel, to furnish to the Managers (or, in the case of Company Counsel required pursuant to Section 4(k) on or before the date on which such opinion and negative assurance letters are required pursuant to Section 4(k). In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Delaware or the Federal laws a Representation Date of the United Statestype described in Section 4(k)(v), the relevant Manager party to such Terms Agreement), on every date specified in Section 4(l) of this Agreement, its opinion or Reliance Letter, as applicable, dated as of such date and addressed to the extent they deem proper Managers, in form and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are substance reasonably satisfactory to counsel for the Managers and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Settlement Datesuch Managers.
(c) The Company shall have requested and caused the Company IP Counsel, to furnish to the Managers (or, in the case of a Representation Date of the type described in Section 4(k)(v), the relevant Manager party to such Terms Agreement), on every date specified in Section 4(m) of this Agreement, its opinion, dated as of such date and addressed to the Managers, in form and substance reasonably satisfactory to such Managers.
(d) The Managers (or, in the case of a Representation Date of the type described in Section 4(k)(v), the relevant Manager party to such Terms Agreement) shall have received from ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLPManagers’ Counsel, counsel for on every date that the Managers, its written delivery of the Company Counsel legal opinion and negative assurance letter is required pursuant to Section 4(l) on or before the date on which of this Agreement, such opinion or opinions or Reliance Letter, as applicable, dated as of such date and negative assurance letters are required pursuant addressed to Section 4(l)the Managers, with respect to the issuance and sale of the Shares, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as such Managers may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Managers shall have received from the Company the certificate required pursuant to Section 4(j) on or before the date on which such certificate is required pursuant to Section 4(j).
(e) The Managers Company shall have received the comfort letter of PricewaterhouseCoopers LLC required furnished or caused to be delivered pursuant furnished to the Managers (or, in the case of a Representation Date of the type described in Section 4(m4(k)(v), the relevant Manager party to such Terms Agreement), on every date specified in Section 4(k) of this Agreement, a certificate of the Company, signed by the Chairman of the Board or the chief executive officer and the principal financial or accounting officer of the Company, dated as of such date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of such date with the same effect as if made on such date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or before satisfied at or prior to such date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date on which such delivery of such comfort letters are required pursuant to Section 4(m)the most recent financial statements included in the Disclosure Package, there has been no Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Prospectus.
(f) The Managers Company shall have received requested and caused the comfort letter Accountants to have furnished to the Managers (or, in the case of ▇▇▇▇▇▇▇▇ LLP required a Representation Date of the type described in Section 4(k)(v), the relevant Manager party to be such Terms Agreement), on every date specified in Section 4(o) hereof and to the extent requested by the Managers in connection with any offering of the Shares, letters (which may refer to letters previously delivered pursuant to Section 4(n) on or before the date on which such delivery Managers), dated as of such comfort letters date, in form and substance reasonably satisfactory to such Managers, confirming that they are required pursuant to Section 4(n)independent accountants within the meaning of the Securities Act and the Exchange Act and the respective applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of any unaudited interim financial information of the Company included or incorporated by reference in the Registration Statement and the Prospectus in accordance with Statement on Auditing Standards No. 100.
(g) The Managers Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, there shall not have received been (i) any change or decrease in financial statement items specified in the comfort letter or letters referred to in paragraph (e) of ▇▇▇▇▇ & ▇▇▇▇▇ LLP required this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to be delivered pursuant in clause (i) or (ii) above, is, in the sole judgment of the Managers, so material and adverse as to Section 4(o) on make it impractical or before inadvisable to proceed with the date on which such offering or delivery of such comfort letters are required pursuant to Section 4(othe Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(h) The Managers Between the Execution Time and the time of any sale of Shares through a Manager, there shall not have received been any decrease in the CFO Certificate required to be delivered pursuant to Section 4(prating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) on under the Securities Act) or before any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the date on which such delivery direction of such CFO Certificate on or before the date on which such delivery of such comfort letters are required pursuant to Section 4(p)possible change.
(i) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement.
(j) The Shares shall have been listed and admitted and authorized for trading on Nasdaq, and satisfactory evidence of such actions shall have been provided to the Managers.
(k) Prior to each Settlement Date and Time of Delivery, as applicable, the Company shall have furnished to the Managers such further information, certificates and documents as the Managers may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Managers any Manager and counsel for the Managers, this Agreement Agreement, as it relates to such Manager, and all obligations of the Managers such Manager hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the Managerssuch Manager. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ Procter LLP, counsel for the Managers, at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, on each such date as provided in this Agreement.
Appears in 1 contract
Sources: Equity Distribution Agreement (PhaseBio Pharmaceuticals Inc)
Conditions to the Obligations of the Managers. The obligations of each Manager the Managers under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time of Delivery, (ii) to the performance by the Company of its obligations hereunder and (iii) the following additional conditions:
(a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b) with respect to any sale of Shares; each Interim Prospectus Supplement shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(s4(q) of this Agreement; any material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose or pursuant to Section 8A of the Act shall have been instituted or threatened.
(b) The Managers Company shall have received the written opinion requested and negative assurance letter of caused Company Counsel required pursuant to Section 4(k) on or before the date on which such opinion and negative assurance letters are required pursuant to Section 4(k). In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Delaware or the Federal laws of the United States, furnish to the extent they deem proper and Managers, on every date specified in such opinionSection 4(l) of this Agreement, upon opinions collectively covering the opinion opinions the form of other counsel of good standing whom they believe to be reliable and who which are satisfactory to counsel for the Managers and (B) attached as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Settlement Date.Exhibit A.
(c) The Managers shall have received from ▇D▇▇▇▇ ▇▇▇▇ & ▇W▇▇▇▇▇▇▇ LLP, counsel for the Managers, its written opinion and negative assurance letter required pursuant to on every date specified in Section 4(l4(m) on or before the date on which of this Agreement, such opinion or opinions and negative assurance letters are required pursuant disclosure letter or letters, dated as of such date and addressed to Section 4(l)the Managers, with respect to the issuance and sale of the Shares, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Managers may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Managers Company shall have received from furnished or caused to be furnished to the Managers, on every date specified in Section 4(k) of this Agreement, a certificate of the Company, signed by the chief executive officer or the President of the Company, and of the chief financial or chief accounting officer of the Company, dated as of such date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that:
(i) the Company has received no stop order suspending the certificate required effectiveness of the Registration Statement, and no proceedings for such purpose or pursuant to Section 4(j8A of the Act have been instituted or, to the Company’s knowledge, threatened by the Commission;
(ii) on or before since the date of the most recent financial statements included in the Prospectus and the Disclosure Package, there has been no event or condition of a type described in Section 2(ll) hereof (a “Material Adverse Change”), except as set forth in or contemplated in the Disclosure Package and the Prospectus;
(iii) the representations, warranties and covenants set forth in Section 2 of this Agreement are true and correct with the same force and effect as though expressly made on which and as of such certificate is required pursuant date; and
(iv) the Company and its subsidiaries have complied with all the agreements hereunder and satisfied all the conditions on its part to Section 4(j)be performed or satisfied hereunder at or prior to such date.
(e) The Managers Company shall have received requested and caused the Accountants to have furnished to the Managers, on every date specified in Section 4(n) hereof and to the extent requested by the Managers in connection with any offering of the Shares, letters (which may refer to letters previously delivered to the Managers), dated as of such date, in form and substance satisfactory to the Managers, which letters shall cover, without limitation, the various financial statements and disclosures contained in the Registration Statement, the Disclosure Package and the Prospectus and other matters ordinarily covered by accountants’ “comfort letter letters” to underwriters in connection with registered public offerings as contemplated in the Statement on Auditing Standards No. 72, as well as confirming that they have performed a review of PricewaterhouseCoopers LLC required any unaudited interim financial information of the Company included in the Registration Statement, the Disclosure Package and the Prospectus in accordance with Statement on Auditing Standards No. 100. References to be delivered pursuant to Section 4(mthe Prospectus in this paragraph (e) on or before include any supplement thereto at the date on which such delivery of such comfort letters are required pursuant to Section 4(m)the letter.
(f) The Managers Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, there shall not have received been (i) any change or decrease specified in the comfort letter or letters referred to in paragraph (e) of ▇▇▇▇▇▇▇▇ LLP required this Section 6 or (ii) Material Adverse Change, except as set forth in or contemplated in the Disclosure Package (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to be delivered pursuant in clause (i) or (ii) above, is, in the sole judgment of the Managers, so material and adverse as to Section 4(n) on make it impractical or before inadvisable to proceed with the date on which such offering or delivery of such comfort letters are required pursuant to Section 4(nthe Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(g) The Managers shall have received the comfort letter of ▇▇▇▇▇ & ▇▇▇▇▇ LLP required to be delivered pursuant to Section 4(o) on or before the date on which such delivery of such comfort letters are required pursuant to Section 4(o).
(h) The Managers shall have received the CFO Certificate required to be delivered pursuant to Section 4(p) on or before the date on which such delivery of such CFO Certificate on or before the date on which such delivery of such comfort letters are required pursuant to Section 4(p).
(i) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement.
(jh) The Shares shall have been listed and admitted and authorized for trading on Nasdaqthe NYSE, and satisfactory evidence of such actions shall have been provided to the Managers.
(ki) Prior to each Settlement Date and Time of Delivery, as applicable, the Company shall have furnished to the Managers Designated Manager such further information, certificates and documents as the Managers Designated Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Managers and counsel for the Managers, this Agreement and all obligations of the Managers applicable Manager hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the Managerssuch Manager with respect to itself only. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. Following any such cancellation by a Manager, this Agreement shall remain in effect as to any other Manager that has not exercised its right to cancel this Agreement pursuant to this Section 6 and any obligations and rights of the Managers under this Agreement shall be satisfied by or afforded to only such other Manager. The documents required to be delivered by this Section 6 shall be delivered at the office of ▇D▇▇▇▇ ▇▇▇▇ & ▇W▇▇▇▇▇▇▇ LLP, counsel for the Managers, at ▇4▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, on each such date as provided in this Agreement.
Appears in 1 contract
Sources: Equity Distribution Agreement (Silvergate Capital Corp)
Conditions to the Obligations of the Managers. The obligations of each Manager under this Agreement and any Terms Agreement the Managers to purchase Shares shall be subject to (i) the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, each Representation Date, Date and as of each Applicable Time, Settlement Date and Time of Delivery, (ii) to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and (iii) to the following additional conditions:
(a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b) with respect to any sale of Shares; each Interim Prospectus Supplement shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(s3(a)(viii) of this Agreement; any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Managers shall have received the written opinion and negative assurance letter of Company Counsel required pursuant to Section 4(k) on or before the date on which such opinion and negative assurance letters are required pursuant to Section 4(k). In rendering such opinionfrom ▇▇▇▇▇▇ ▇▇▇▇▇ & Bockius LLP, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to outside counsel for the Managers Company, on every date specified in Section 4(l) of this Agreement, such opinion or opinions, dated as of such date and (B) as to matters of fact, addressed to the extent they deem properManagers, on certificates of responsible officers of substantially in the Company and public officials. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Settlement Dateform attached hereto as Annex II.
(c) The Managers shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Managers, its written opinion and negative assurance letter required pursuant to on every date specified in Section 4(l4(m) on or before the date on which of this Agreement, such opinion or opinions, dated as of such date and negative assurance letters are required pursuant addressed to Section 4(l)the Managers, with respect to the issuance and sale of the Shares, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Managers may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Managers Company shall have received from furnished or caused to be furnished to the Managers, on every date specified in Section 4(k) of this Agreement, a certificate of the Company, signed by the President and CEO and the principal financial or accounting officer of the Company, dated as of such date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Prospectus and any supplements or amendments thereto and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of such date with the certificate required pursuant same effect as if made on such date and the Company has complied with all the agreements and satisfied all the conditions on its part to Section 4(jbe performed or satisfied at or prior to such date;
(ii) on no stop order suspending the effectiveness of the Registration Statement or before any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date on which such certificate is required pursuant to Section 4(jof the most recent financial statements included or incorporated by reference in the Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Change, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(e) The Managers Company shall have received requested and caused the comfort letter Accountants to have furnished to the Managers, on every date specified in Section 4(n) hereof and to the extent requested by the Managers in connection with any offering of PricewaterhouseCoopers LLC required the Shares, letters (which may refer to be letters previously delivered pursuant to Section 4(m) on or before the date on which such delivery Managers), dated as of such date, in form and substance satisfactory to the Managers, from KPMG LLP, containing statements and information of the type ordinarily included in accountants’ “comfort letters are required pursuant letters” addressed to Section 4(m)the Managers with respect to the financial statements and certain financial information of the Company contained in or incorporated by reference in the Registration Statement and the Prospectus.
(f) The Managers Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, there shall not have received been (i) any change or decrease specified in the comfort letter or letters referred to in paragraph (e) of ▇▇▇▇▇▇▇▇ LLP required this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to be delivered pursuant in clause (i) or (ii) above, is, in the sole judgment of the Managers, so material and adverse as to Section 4(n) on make it impractical or before inadvisable to proceed with the date on which such offering or delivery of such comfort letters are required pursuant to Section 4(nthe Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(g) The Managers shall have received Company has paid the comfort letter required Commission filing fees relating to the Shares or will pay such fees within the time period required by Rule 456(b)(1)(i) of ▇▇▇▇▇ & ▇▇▇▇▇ LLP required to be delivered pursuant to Section 4(othe Securities Act and otherwise in accordance with Rules 456(b) on or before and 457(r) of the date on which such delivery of such comfort letters are required pursuant to Section 4(o)Securities Act.
(h) The Managers Between the Execution Time and the time of any sale of Shares through the Managers, there shall not have received been any decrease in the CFO Certificate required to be delivered pursuant to Section 4(prating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 3(a)(62) on under the Exchange Act) or before any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the date on which such delivery direction of such CFO Certificate on or before the date on which such delivery of such comfort letters are required pursuant to Section 4(p)possible change.
(i) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement.
(j) The Shares shall have been listed and admitted and authorized for trading on Nasdaq, and satisfactory evidence of such actions shall have been provided to the Managers.
(k) Prior to each Settlement Date and Time of Delivery, as applicable, the Company shall have furnished to the Managers such further information, certificates and documents as the Managers may reasonably request.
(k) The Shares shall have been listed and admitted and authorized for trading on the Nasdaq, and satisfactory evidence of such actions shall have been provided to the Managers. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Managers and counsel for the Managers, this Agreement and all obligations of the Managers hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the Managers. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writingwriting pursuant to Section 10. The documents required to be delivered by this Section 6 shall be delivered at the office of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Managers, at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇or electronically if agreed to by the parties, on each such date as provided in this Agreement.
Appears in 1 contract
Sources: Equity Distribution Agreement (Mercury Systems Inc)
Conditions to the Obligations of the Managers. The obligations of each Manager the Managers under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time of Delivery, (ii) to the performance by the Company of its obligations hereunder and (iii) the following additional conditions:
(a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b) with respect to any sale of Shares; each Interim Prospectus Supplement Supplement, if any, shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(s3(a)(ix) of this Agreement; any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Managers Company shall have received requested and caused the written opinion and negative assurance letter Company Counsel, to furnish to the Managers, on every date specified in Section 4(l) of Company Counsel required pursuant to Section 4(k) on or before the date on which such opinion and negative assurance letters are required pursuant to Section 4(k). In rendering such this Agreement, its opinion, dated as of such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Delaware or the Federal laws of the United States, date and addressed to the extent they deem proper Managers, in form and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are substance reasonably satisfactory to counsel for the Managers and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Settlement DateManagers.
(c) The Managers shall have received from L▇▇▇▇▇ ▇▇▇▇ & ▇▇W▇▇▇▇▇▇ LLP, counsel for the Managers, its written opinion and negative assurance letter required pursuant to on every date specified in Section 4(l4(m) on or before the date on which of this Agreement, such opinion or opinions, dated as of such date and negative assurance letters are required pursuant addressed to Section 4(l)the Managers, with respect to the issuance and sale of the Shares, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Managers may reasonably require, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(d) The Managers Company shall have received from furnished or caused to be furnished to the Managers, on every date specified in Section 4(k) of this Agreement, a certificate of the Company, signed by the Chief Executive Officer or the President and the principal financial or accounting officer of the Company, dated as of such date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of such date with the certificate required pursuant same effect as if made on such date and the Company has complied with all the agreements and satisfied all the conditions on its part to Section 4(jbe performed or satisfied at or prior to such date;
(ii) on no stop order suspending the effectiveness of the Registration Statement or before any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package, there has been no material adverse effect on which such certificate is required pursuant to Section 4(jthe condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus.
(e) The Managers Company shall have received requested and caused:
(i) The Accountant to have furnished to the Managers, on every date specified in Section 4(n) hereof and to the extent requested by the Managers in connection with any offering of the Shares, letters (which may refer to letters previously delivered to the Managers), dated as of such date in form and substance reasonably satisfactory to the Managers, confirming that they are independent accountants within the meaning of the Securities Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and containing statements and information of the type customarily included in accountants’ “comfort letter letters” to underwriters with respect to the financial statements and certain financial information of PricewaterhouseCoopers LLC required the Company contained or incorporated by reference in the Registration Statement and Prospectus;
(ii) M▇▇▇ A▇▇▇▇ LLP to be have furnished to the Managers, on every date specified in Section 4(n) hereof and to the extent requested by the Managers in connection with any offering of the Shares, letters (which may refer to letters previously delivered pursuant to the Managers), dated as of such date in form and substance reasonably satisfactory to the Managers, confirming that they are independent accountants within the meaning of the Securities Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information of Nickel Road contained or incorporated by reference in the Registration Statement and Prospectus; and
(iii) P▇▇▇▇▇ & M▇▇▇▇, PLLC to have furnished to the Managers, on every date specified in Section 4(m4(n) on hereof and to the extent requested by the Managers in connection with any offering of the Shares, letters (which may refer to letters previously delivered to the Manager), dated as of such date in form and substance reasonably satisfactory to the Managers, confirming that they are independent accountants within the meaning of the Securities Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the statements of revenues and direct operating expenses of the Bayswater Properties contained or before incorporated by reference in the Registration Statement and Prospectus; References to the Prospectus in this paragraph (e) include any supplement thereto at the date on which such delivery of such comfort letters are required pursuant to Section 4(m)the letter.
(f) The Managers Company shall have received the comfort letter of requested and caused C▇▇▇▇▇, G▇▇▇▇▇▇▇▇ LLP required & Associates, Inc. to be delivered pursuant have furnished to the Managers, on every date specified in Section 4(n) on or before hereof and to the date on extent requested by the Managers in connection with any offering of Shares, letters (which such delivery may refer to letters previously delivered to the Managers), dated as of such dates, in form and substance satisfactory to the Managers confirming that they are an independent petroleum engineering firm and containing statements and information of the type customarily included in reserve engineers’ “comfort letters are required pursuant letters” to Section 4(n)underwriters with respect to the reserve reports contained or incorporated by reference into the Registration Statement, Disclosure Package and the Prospectus.
(g) The Managers Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, there shall not have received been (i) any change or decrease specified in the comfort letter or letters referred to in paragraph (e) of ▇▇▇▇▇ & ▇▇▇▇▇ LLP required this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to be delivered pursuant in clause (i) or (ii) above, is, in the sole judgment of either Manager, so material and adverse as to Section 4(o) on make it impractical or before inadvisable to proceed with the date on which such offering or delivery of such comfort letters are required pursuant to Section 4(othe Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(h) The Managers Between the Execution Time and the time of any sale of Shares through the Managers, there shall not have received been any decrease in the CFO Certificate required to be delivered pursuant to Section 4(prating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) on under the Securities Act) or before any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the date on which such delivery direction of such CFO Certificate on or before the date on which such delivery of such comfort letters are required pursuant to Section 4(p)possible change.
(i) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement.
(j) The Shares shall have been listed and admitted and authorized for trading on Nasdaqthe Nasdaq Capital Market, and satisfactory evidence of such actions shall have been provided to the Managers.
(k) Prior to each Settlement Date and Time of Delivery, as applicable, the Company shall have furnished to the Managers Designated Manager such further information, certificates and documents as the Managers Designated Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Managers and counsel for the Managers, this Agreement and all obligations of the Managers applicable Manager hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the Managerssuch Manager. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of L▇▇▇▇▇ ▇▇▇▇ & ▇▇W▇▇▇▇▇▇ LLP, counsel for the Managers, at ▇3▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, on each such date as provided in this Agreement.
Appears in 1 contract
Sources: Equity Distribution Agreement (Prairie Operating Co.)
Conditions to the Obligations of the Managers. The obligations of each Manager the Managers under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Time and Settlement Date and Time of DeliveryDate, (ii) to the performance by the Company of its obligations hereunder and (iii) the following additional conditions:
(a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b) with respect to any sale of Shares; each Interim Prospectus Supplement shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(s4(t) of this Agreement; any material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose or pursuant to Section 8A of the Act shall have been instituted or threatenedor, to the knowledge of the Company, be threatened by the Commission.
(b) The Managers Company shall have received requested and caused Company Counsel to furnish to the Managers, on every date specified in Section 4(l) of this Agreement subject to Section 4(r), a written opinion and negative assurance disclosure letter of Company Counsel required pursuant to Section 4(k) on or before the date on which such opinion in form and negative assurance letters are required pursuant to Section 4(k). In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Delaware or the Federal laws of the United States, substance reasonably satisfactory to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Managers and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Settlement DateManagers.
(c) The Managers shall have received from ▇▇▇▇▇ ▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Managers, its written opinion and negative assurance letter required pursuant on every date specified in Section 4(m) of this Agreement subject to Section 4(l) on or before the date on which 4(r), such opinion or opinions and negative assurance letters are required pursuant disclosure letter or letters, dated as of such date and addressed to Section 4(l)the Managers, with respect to the issuance and sale of the Shares, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Managers may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Managers Shares shall either have been approved for listing on the Exchange, subject only to notice of issuance, or the Company shall have received from filed an application for listing of the Company Shares on the certificate required pursuant to Section 4(j) on Exchange at, or before prior to, the date on which such certificate is required pursuant to Section 4(j)issuance of any Placement Notice.
(e) The Managers Company shall have received the comfort letter of PricewaterhouseCoopers LLC required furnished or caused to be delivered furnished to the Managers, on every date specified in Section 4(k) of this Agreement subject to Section 4(r), a certificate of the Company, signed by an executive officer of the Company, dated as of such date, to the effect that the ▇▇▇▇▇▇ of such certificate has carefully examined the Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that:
(i) the Company has received no stop order suspending the effectiveness of the Registration Statement, and no proceedings for such purpose or pursuant to Section 4(m8A of the Act have been instituted or, to the Company’s knowledge, are threatened by the Commission;
(ii) on or before since the date of the most recent financial statements incorporated by reference in the Prospectus and the Disclosure Package, there has been no event or condition of a type described in Section 2(k) hereof (a “Material Adverse Change”), except as set forth in or contemplated in the Disclosure Package and the Prospectus;
(iii) the representations, warranties and covenants set forth in Section 2 of this Agreement are true and correct with the same force and effect as though expressly made on which such delivery and as of such comfort letters are required pursuant date; and
(iv) except as waived by the Agent in writing, the Company has complied with all the agreements hereunder and satisfied all the conditions on its part to Section 4(m)be performed or satisfied hereunder at or prior to such date.
(f) The Managers Company shall have received requested and caused the Accountants to have furnished to the Managers, on every date specified in Section 4(o) hereof, letters (which may refer to letters previously delivered to the Managers), dated as of such date, in form and substance reasonably satisfactory to the Managers, which letters shall cover, without limitation, the various financial statements and disclosures incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus and other matters ordinarily covered by accountants’ “comfort letter letters” to underwriters in connection with registered public offerings as contemplated in AS 6101, as well as confirming that they have performed a review of ▇▇▇▇▇▇▇▇ LLP required any unaudited interim financial information of the Company included in the Registration Statement, the Disclosure Package and the Prospectus in accordance with AS 4105. References to be delivered pursuant to Section 4(nthe Prospectus in this paragraph (f) on or before include any supplement thereto at the date on which such delivery of such comfort letters are required pursuant to Section 4(n)letter.
(g) The Managers Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein or in subsequent reports filed with the Commission and incorporated by reference therein, there shall not have received been any Material Adverse Change, except as set forth in or contemplated in the comfort letter Disclosure Package and the Prospectus (exclusive of ▇▇▇▇▇ & ▇▇▇▇▇ LLP required any amendment or supplement thereto) the effect of which is, in the reasonable judgment of the Managers, so material and adverse as to be delivered pursuant make it impractical or inadvisable to Section 4(o) on proceed with the offering or before the date on which such delivery of such comfort letters are required pursuant to Section 4(o)the Shares as contemplated by this Agreement and the Prospectus.
(h) The Managers shall have received the CFO Certificate required to be delivered pursuant to Section 4(p) on or before the date on which such delivery of such CFO Certificate on or before the date on which such delivery of such comfort letters are required pursuant to Section 4(p).
(i) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement.
(ji) The Shares shall have been listed and admitted and authorized for trading on Nasdaqthe Exchange, and satisfactory evidence of such actions shall have been provided to the Managers.
(kj) Prior The Company shall have furnished or caused to be furnished to the Managers if requested by the Managers, in connection with each Settlement Representation Date on which the Company is required to provide a certificate under Section 4(k) of this Agreement, a certificate of the Company, signed by the chief financial officer or similar officer of the Company, dated as of such date, in form and Time of Deliverysubstance satisfactory to the Managers and the Company, providing “management comfort” with respect to certain financial information included in the Registration Statement and the Prospectus, as applicable, to the extent such financial information is not covered by an accountants’ “comfort letter” delivered as of such date pursuant to Section 6(f) of this Agreement.
(k) In connection with each Representation Date, the Company shall have furnished to the Managers such further information, certificates and documents as the Managers may reasonably requestrequest and which are usually and customarily furnished by an issuer of securities in connection with a securities offering of the type contemplated hereby. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Managers and counsel for the Managers, this Agreement and all obligations of the Managers hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicableDate, by the Managers, subject to Section 8 hereof. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of to ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Managers, at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, on each such date as provided in this Agreement.
Appears in 1 contract
Sources: Equity Distribution Agreement (Global Ship Lease, Inc.)
Conditions to the Obligations of the Managers. The obligations of each Manager under this Agreement and any Terms Agreement the Managers to purchase the Securities shall be subject to (i) the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, each Representation Time and the Closing Date, and as to the accuracy of each Applicable Timethe statements of the Company made in any certificates pursuant to the provisions hereof, Settlement Date and Time of Delivery, (ii) to the performance by the Company of its obligations hereunder and (iii) to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) with respect hereto, and any other material required to any sale of Shares; each Interim Prospectus Supplement be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed in with the manner required Commission within the applicable time periods prescribed for such filings by Rule 424(b) within the time period required by Section 4(s) of this Agreement433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Managers Company shall have received the written opinion requested and negative assurance letter of Company Counsel required pursuant to Section 4(k) on or before the date on which such opinion and negative assurance letters are required pursuant to Section 4(k). In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Managers and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Settlement Date.
(c) The Managers shall have received from caused ▇▇▇▇▇ ▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, outside counsel for the ManagersCompany, its written to have furnished to the Representatives their opinion and negative assurance letter required pursuant letter, dated the Closing Date and addressed to Section 4(l) on or before the date on which Representatives, in the form agreed between such opinion and negative assurance letters are required pursuant to Section 4(l), counsel and the Representatives.
(c) The Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Managers shall have received from the Company the certificate required pursuant to Section 4(j) on or before the date on which such certificate is required pursuant to Section 4(j).
(e) The Managers shall have received the comfort letter of PricewaterhouseCoopers LLC required to be delivered pursuant to Section 4(m) on or before the date on which such delivery of such comfort letters are required pursuant to Section 4(m).
(f) The Managers shall have received the comfort letter of ▇▇▇▇▇requested and caused ▇▇▇ LLP required to be delivered pursuant to Section 4(n) on or before the date on which such delivery of such comfort letters are required pursuant to Section 4(n).
(g) The Managers shall have received the comfort letter of ▇▇▇▇▇ & ▇▇▇▇▇ LLP required to be delivered pursuant to Section 4(o) on or before the date on which such delivery of such comfort letters are required pursuant to Section 4(o).
(h) The Managers shall have received the CFO Certificate required to be delivered pursuant to Section 4(p) on or before the date on which such delivery of such CFO Certificate on or before the date on which such delivery of such comfort letters are required pursuant to Section 4(p).
(i) FINRA shall not have raised any objection with respect and Li, Attorneys-at-Law, special Taiwanese counsel to the fairness and reasonableness of the terms and arrangements under this Agreement.
(j) The Shares shall have been listed and admitted and authorized for trading on NasdaqCompany, and satisfactory evidence of such actions shall have been provided to the Managers.
(k) Prior to each Settlement Date and Time of Delivery, as applicable, the Company shall have furnished to the Managers such further informationRepresentatives their opinion, certificates dated the Closing Date and documents as the Managers may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance addressed to the Managers Representatives, in the form agreed between such counsel and counsel for the Managers, this Agreement and all obligations of the Managers hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the Managers. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Managers, at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, on each such date as provided in this AgreementRepresentatives.
Appears in 1 contract
Sources: Subscription Agreement (Intel Corp)
Conditions to the Obligations of the Managers. The obligations of each Manager the Managers under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time of Delivery, (ii) to the performance by the Company of its obligations hereunder and (iii) the following additional conditions:
(a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b) with respect to any sale of Shares; each Interim Prospectus Supplement shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(s4(q) of this Agreement; any material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose or pursuant to Section 8A of the Act shall have been instituted or threatened.
(b) The Managers Company shall have received the written opinion requested and negative assurance letter of caused Company Counsel required pursuant to Section 4(k) on or before the date on which such opinion and negative assurance letters are required pursuant to Section 4(k). In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Delaware or the Federal laws of the United States, furnish to the extent they deem proper and Managers, on every date specified in such opinionSection 4(l) of this Agreement, upon the opinion of other counsel of good standing whom they believe to be reliable opinions in form and who are substance satisfactory to counsel for the Managers and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Settlement DateManagers.
(c) The Managers shall have received from ▇D▇▇▇▇ ▇▇▇▇ & ▇W▇▇▇▇▇▇▇ LLP, counsel for the Managers, its written opinion and negative assurance letter required pursuant to on every date specified in Section 4(l4(m) on or before the date on which of this Agreement, such opinion or opinions and negative assurance letters are required pursuant disclosure letter or letters, dated as of such date and addressed to Section 4(l)the Managers, with respect to the issuance and sale of the Shares, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Managers may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Managers Company shall have received from furnished or caused to be furnished to the Managers, on every date specified in Section 4(k) of this Agreement, a certificate of the Company, signed by the chief executive officer or the President of the Company, and of the chief financial or chief accounting officer of the Company, dated as of such date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that:
(i) the Company has received no stop order suspending the certificate required effectiveness of the Registration Statement, and no proceedings for such purpose or pursuant to Section 4(j8A of the Act have been instituted or, to the Company’s knowledge, threatened by the Commission;
(ii) on or before since the date of the most recent financial statements included in the Prospectus and the Disclosure Package, there has been no event or condition of a type described in Section 2(k) hereof (a “Material Adverse Change”), except as set forth in or contemplated in the Disclosure Package and the Prospectus;
(iii) the representations, warranties and covenants set forth in Section 2 of this Agreement are true and correct with the same force and effect as though expressly made on which and as of such certificate is required pursuant date; and
(iv) the Company and its subsidiaries have complied with all the agreements hereunder and satisfied all the conditions on its part to Section 4(j)be performed or satisfied hereunder at or prior to such date.
(e) The Managers Company shall have received requested and caused the Accountants and the Predecessor Accounts, if applicable, to have furnished to the Managers, on every date specified in Section 4(n) hereof and to the extent requested by the Managers in connection with any offering of the Shares, letters (which may refer to letters previously delivered to the Managers), dated as of such date, in form and substance satisfactory to the Managers, which letters shall cover, without limitation, the various financial statements and disclosures contained in the Registration Statement, the Disclosure Package and the Prospectus and other matters ordinarily covered by accountants’ “comfort letter letters” to underwriters in connection with registered public offerings as contemplated in the Statement on Auditing Standards No. 72, as well as confirming that they have performed a review of PricewaterhouseCoopers LLC required any unaudited interim financial information of the Company included in the Registration Statement, the Disclosure Package and the Prospectus in accordance with Statement on Auditing Standards No. 100. References to be delivered pursuant to Section 4(mthe Prospectus in this paragraph (e) on or before include any supplement thereto at the date on which such delivery of such comfort letters are required pursuant to Section 4(m)the letter.
(f) The Managers Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, there shall not have received been (i) any change or decrease specified in the comfort letter or letters referred to in paragraph (e) of ▇▇▇▇▇▇▇▇ LLP required this Section 6 or (ii) Material Adverse Change, except as set forth in or contemplated in the Disclosure Package (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to be delivered pursuant in clause (i) or (ii) above, is, in the sole judgment of the Managers, so material and adverse as to Section 4(n) on make it impractical or before inadvisable to proceed with the date on which such offering or delivery of such comfort letters are required pursuant to Section 4(nthe Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(g) The Managers shall have received the comfort letter of ▇▇▇▇▇ & ▇▇▇▇▇ LLP required to be delivered pursuant to Section 4(o) on or before the date on which such delivery of such comfort letters are required pursuant to Section 4(o).
(h) The Managers shall have received the CFO Certificate required to be delivered pursuant to Section 4(p) on or before the date on which such delivery of such CFO Certificate on or before the date on which such delivery of such comfort letters are required pursuant to Section 4(p).
(i) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement.
(jh) The Shares shall have been listed and admitted and authorized for trading on Nasdaqthe NYSE, and satisfactory evidence of such actions shall have been provided to the Managers.
(ki) Prior to each Settlement Date and Time of Delivery, as applicable, the Company shall have furnished to the Managers Designated Manager such further information, certificates and documents as the Managers Designated Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Managers and counsel for the Managers, this Agreement and all obligations of the Managers applicable Manager hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the Managerssuch Manager with respect to itself only. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. Following any such cancellation by a Manager, this Agreement shall remain in effect as to the other Manager that has not exercised its right to cancel this Agreement pursuant to this Section 6 and any obligations and rights of the Managers under this Agreement shall be satisfied by or afforded to only such other Manager. The documents required to be delivered by this Section 6 shall be delivered electronically at the office of ▇D▇▇▇▇ ▇▇▇▇ & ▇W▇▇▇▇▇▇▇ LLP, counsel for the Managers, at ▇4▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, on each such date as provided in this Agreement.
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Conditions to the Obligations of the Managers. The obligations of each Manager the Managers under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time of Delivery, (ii) to the performance by the Company of its obligations hereunder and (iii) the following additional conditions:
(a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b) with respect to any sale of Shares; each Interim Prospectus Supplement shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(s4(r) of this Agreement; any material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Managers shall have received the written opinion and negative assurance letter of Company Counsel required pursuant to Section 4(k) on or before the date on which such opinion and negative assurance letters are required pursuant to Section 4(k). In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Managers and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the The Company and public officials. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Settlement Date.
(c) The Managers shall have received from ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for requested and caused Company Counsel to furnish to the Managers, its written opinion and negative assurance letter required pursuant to Section 4(l) on or before the every date on which such opinion and negative assurance letters are required pursuant to Section 4(l), and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Managers shall have received from the Company the certificate required pursuant to Section 4(j) on or before the date on which such certificate is required pursuant to Section 4(j).
(e) The Managers shall have received the comfort letter of PricewaterhouseCoopers LLC required to be delivered pursuant to specified in Section 4(m) on or before the date on which such delivery of such comfort letters are required pursuant to Section 4(m).
(f) The Managers shall have received the comfort letter of ▇▇▇▇▇▇▇▇ LLP required to be delivered pursuant to Section 4(n) on or before the date on which such delivery of such comfort letters are required pursuant to Section 4(n).
(g) The Managers shall have received the comfort letter of ▇▇▇▇▇ & ▇▇▇▇▇ LLP required to be delivered pursuant to Section 4(o) on or before the date on which such delivery of such comfort letters are required pursuant to Section 4(o).
(h) The Managers shall have received the CFO Certificate required to be delivered pursuant to Section 4(p) on or before the date on which such delivery of such CFO Certificate on or before the date on which such delivery of such comfort letters are required pursuant to Section 4(p).
(i) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement.
(j) The Shares shall have been listed and admitted and authorized for trading on Nasdaq, and satisfactory evidence of such actions shall have been provided to the Managers.
(k) Prior to each Settlement Date and Time of Delivery, as applicable, the Company shall have furnished to the Managers such further information, certificates and documents as the Managers may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of opinions collectively covering the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in the form and substance to the Managers and counsel for the Managers, this Agreement and all obligations of the Managers hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, which are attached as applicable, by the Managers. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Managers, at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, on each such date as provided in this Agreement.Exhibit A.
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Conditions to the Obligations of the Managers. The obligations of each Manager the Managers under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Time and Settlement Date and Time of DeliveryDate, (ii) to the performance by the Company of its obligations hereunder and (iii) the following additional conditions:
(a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b) with respect to any sale of Shares; each Interim Prospectus Supplement shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(s) of this Agreement; any material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose or pursuant to Section 8A of the Act shall have been instituted or threatenedor, to the knowledge of the Company, be threatened by the Commission.
(b) The Managers Company shall have received requested and caused Company Counsel to furnish to the Managers, on every date specified in Section 4(l) of this Agreement subject to Section 4(q), a written opinion and negative assurance disclosure letter of Company Counsel required pursuant to Section 4(k) on or before the date on which such opinion in form and negative assurance letters are required pursuant to Section 4(k). In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Delaware or the Federal laws of the United States, substance reasonably satisfactory to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Managers and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Settlement DateManagers.
(c) The At each Representation Date (except when a waiver is in effect pursuant to Section 4(q)), the Managers shall have received from ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Managers, its written opinion and negative assurance letter required pursuant to Section 4(l) on or before the date on which such opinion or opinions and negative assurance letters are required pursuant disclosure letter or letters, dated as of such date and addressed to Section 4(l)the Managers, with respect to the issuance and sale of the Shares, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Managers may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Managers Company shall have received from furnished or caused to be furnished to the Managers, on every date specified in Section 4(k) of this Agreement subject to Section 4(q), a certificate of the Company, signed by the chief executive officer or the President of the Company, and by the chief financial or chief accounting officer of the Company, dated as of such date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that:
(i) since the date of the most recent financial statements incorporated by reference in the Prospectus and the Disclosure Package, there has been no event or condition of a type described in Section 2(i) hereof (a “Material Adverse Change”), except as set forth in or contemplated in the Disclosure Package and the Prospectus;
(ii) the representations, warranties and covenants set forth in Section 2 of this Agreement are true and correct with the same force and effect as though expressly made on and as of such date; and
(iii) the Company has complied with all the certificate required pursuant agreements hereunder and satisfied all the conditions on its part to Section 4(j) on be performed or before the date on which satisfied hereunder at or prior to such certificate is required pursuant to Section 4(j)date.
(e) The Managers Company shall have received requested and caused the Accountants to have furnished to the Managers, on every date specified in Section 4(n) hereof, letters (which may refer to letters previously delivered to the Managers), dated as of such date, in form and substance reasonably satisfactory to the Managers, which letters shall cover, without limitation, the various financial statements and disclosures incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus and other matters ordinarily covered by accountants’ “comfort letter letters” to underwriters in connection with registered public offerings as contemplated in AS 6101, as well as confirming that they have performed a review of PricewaterhouseCoopers LLC required any unaudited interim financial information of the Company included in the Registration Statement, the Disclosure Package and the Prospectus in accordance with AS 4105. References to be delivered pursuant to Section 4(mthe Prospectus in this paragraph (e) on or before include any supplement thereto at the date on which such delivery of such comfort letters are required pursuant to Section 4(m)the letter.
(f) The Managers Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, there shall not have received been any Material Adverse Change, except as set forth in or contemplated in the comfort letter Disclosure Package and the Prospectus (exclusive of ▇▇▇▇▇▇▇▇ LLP required any amendment or supplement thereto) the effect of which is, in the reasonable judgment of the Managers, so material and adverse as to be delivered pursuant make it impractical or inadvisable to Section 4(n) on proceed with the offering or before the date on which such delivery of such comfort letters are required pursuant to Section 4(nthe Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(g) The Managers shall have received the comfort letter of ▇▇▇▇▇ & ▇▇▇▇▇ LLP required to be delivered pursuant to Section 4(o) on or before the date on which such delivery of such comfort letters are required pursuant to Section 4(o).
(h) The Managers shall have received the CFO Certificate required to be delivered pursuant to Section 4(p) on or before the date on which such delivery of such CFO Certificate on or before the date on which such delivery of such comfort letters are required pursuant to Section 4(p).
(i) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement.
(jh) The Shares Prior to the date on which the Company first delivers a Placement Notice, the Company shall have been listed filed an application for listing of the Shares on Nasdaq and admitted and authorized for trading on Nasdaq, and satisfactory evidence of such actions Nasdaq shall have been reviewed such application and not provided any objections thereto.
(i) If requested by the Managers, the Company shall have furnished or caused to be furnished to the Managers, on every date specified in Section 4(k) of this Agreement, a certificate of the Company, signed by the chief financial officer or similar officer of the Company, dated as of such date, in form and substance satisfactory to the Managers providing “management comfort” with respect to certain financial information included in the Registration Statement and the Prospectus, as applicable.
(kj) Prior to each Settlement Date and Time of Delivery, as applicableDate, the Company shall have furnished to the Managers such further information, certificates and documents as the Managers may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Managers and counsel for the Managers, this Agreement and all obligations of the Managers hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the Managers. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of electronically to ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Managers, at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, on each such date as provided in this Agreement.
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