Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any Option Closing Date, 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 to the following additional conditions: (a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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 Company shall have requested and caused Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representatives its opinions and negative assurance letter, each dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives. (c) The Representatives shall have received from Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letter, each dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives 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 Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement 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 the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date; (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 of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (e) The Company shall have requested and caused KPMG to have furnished to the Representatives, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from June 29, 2020 (date of inception) through July 24, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that: (i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and (ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter. (f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (g) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. (h) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby. (i) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives. (j) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement. (k) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account. (l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(g) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. 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 Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein, on the Closing Date.
Appears in 4 contracts
Sources: Underwriting Agreement (Gores Holdings VI, Inc.), Underwriting Agreement (Gores Holdings VI, Inc.), Underwriting Agreement (Gores Holdings VI, Inc.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Firm Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any Option Closing Datesettlement date pursuant to Section 4 hereof, 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 to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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 Company shall have requested and caused Weil, Gotshal & ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, LLP, counsel for the Company, to have furnished to the Representatives its opinions and negative assurance letter, each dated the Closing Date and any settlement date, as applicable, and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(c) The Company shall have requested and caused Ogier, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and any settlement date, as applicable, and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(d) The Representatives shall have received from Ropes Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, each dated the Closing Date and any settlement date, as applicable, and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives 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.
(de) The Company shall have furnished to the Representatives a certificate of the Company, signed by the its Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing DateDate and any settlement date, as applicable, to the effect that the signers of such certificate have carefully examined the Registration Statement Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and each “road show” as defined in Rule 433(h) of the Act used in connection with the Offering, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date such date with the same effect as if made on the Closing Date such date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Datesuch 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 of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(ef) The Company shall have requested and caused KPMG Withum to have furnished to the Representatives, at the Execution Time and at the Closing DateDate and any settlement date, as applicable, letters, dated respectively as of the Execution Time and as of the Closing DateDate and any settlement date, as applicable, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from June 29, 2020 (date of inception) through July 24, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(fg) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (ef) of this Section 6 7 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(gh) Prior to the Closing Date, and any settlement date, as applicable, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(hi) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(ij) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(jk) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Forward Purchase Agreement, the Insider Letter, the Registration Rights Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement.
(kl) At least one Business Day prior to the Closing DateDate or a settlement date, as applicable, the Sponsor Company shall have caused proceeds from the purchase price for sale of the Private Placement Warrants to be deposited into the Trust AccountAccount such that the cumulative amount deposited into the Trust Account as of such Closing Date or such settlement date, as applicable, shall equal the product of the number of Units issued in the Offering as of such Closing Date or such settlement date, as applicable, and the public offering price per Unit as set forth on the cover of the Prospectus.
(lm) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(g6(ii) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date;
(ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof;
(iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and
(v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. If any of the conditions specified in this Section 6 7 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions, negative assurance letters opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. 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 7 and, if applicable, the last sentence of Section 4(c), shall be delivered at the office of Ropes Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, unless otherwise indicated herein, on the Closing DateDate or the applicable settlement date, as applicable.
Appears in 4 contracts
Sources: Underwriting Agreement (Kismet Acquisition Three Corp.), Underwriting Agreement (Kismet Acquisition Two Corp.), Underwriting Agreement (Kismet Acquisition Two Corp.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any Option Closing Datesettlement date pursuant to Section 3 hereof, 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 to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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 Company shall have requested and caused Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date or settlement date (as applicable) and negative assurance letteraddressed to the Representatives, each in a form reasonably acceptable to the Representatives.
(c) The Company shall have requested and caused ▇▇▇▇▇▇ and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(cd) The Representatives shall have received from Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, each dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives 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.
(de) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing DateDate or settlement date (as applicable), to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement 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 the Closing Date or settlement date (as applicable) with the same effect as if made on the Closing Date or settlement date (as applicable) and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing DateDate or settlement date (as applicable);
(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 of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(ef) The Company shall have requested and caused KPMG to have furnished to the Representatives, at the Execution Time and at the Closing DateDate or settlement date (as applicable), letters, dated respectively as of the Execution Time and as of the Closing DateDate or settlement date (as applicable), in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review an audit of the audited financial statements of the Company for the period from June 29July 11, 2020 2019 (date of inception) through July 24June 30, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing DateDate or settlement date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (ef) include any supplement thereto at the date of the letter.
(fg) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (ef) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(gh) Prior to the Closing DateDate or settlement date (as applicable), the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(hi) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(ij) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital MarketNew York Stock Exchange, satisfactory evidence of which shall have been provided to the Representatives.
(jk) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Forward Purchase Agreement, the Additional Forward Purchase Agreements, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement.
(kl) At least one Business Day prior to the Closing DateDate or settlement date (as applicable), the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(lm) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(g5(ii) hereof shall have been issued as of the Closing DateDate or settlement date (as applicable), and no proceedings for that purpose shall have been instituted or shall have been threatened.
(m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate signed by the Chief Executive Officer and the principal financial threatened or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as 8A of such Option Closing Date;
(ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof;
(iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and
(v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option SecuritiesAct. 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, negative assurance letters opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. 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 Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, unless otherwise indicated herein, on the Closing Date.
Appears in 4 contracts
Sources: Underwriting Agreement (TPG Pace Tech Opportunities Corp.), Underwriting Agreement (TPG Pace Beneficial Finance Corp.), Underwriting Agreement (TPG Pace Tech Opportunities Corp.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any Option Closing Datesettlement date pursuant to Section 3 hereof, 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 to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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 under Section 8A of the Securities Act shall have been instituted or threatened.
(b) The Company shall have requested and caused Weil, Gotshal ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representatives its opinions and negative assurance letter, each dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(c) The Company shall have requested and caused Walkers, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(d) The Representatives shall have received from Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, each dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives 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.
(de) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer and the principal financial or accounting officer Managing Director of the Company, dated the Closing Date, to the effect that the signers signer of such certificate have has carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement 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 the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(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 or under Section 8A of the Securities Act have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(ef) The Company shall have requested and caused KPMG Withum to have furnished to the Representatives, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company as of February 3, 2021 and for the period from June 29February 2, 2020 2021 (date of inceptionincorporation) through July 24February 3, 20202021, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (ef) include any supplement thereto at the date of the letter.
(fg) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (ef) of this Section 6 7 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(gh) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(hi) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(ij) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital MarketNew York Stock Exchange, satisfactory evidence of which shall have been provided to the Representatives.
(jk) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider Letters Letters, the Registration and Shareholder Rights Agreement and the Registration Rights Administrative Services Agreement.
(kl) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(lm) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(g5(ii)6(m) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose or under Section 8A of the Securities Act shall have been instituted or shall have been threatened.
(m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date;
(ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof;
(iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and
(v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. If any of the conditions specified in this Section 6 7 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions, negative assurance letters opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. 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 7 shall be delivered at the office of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein, on the Closing Date.
Appears in 4 contracts
Sources: Underwriting Agreement (Oaktree Acquisition Corp. III), Underwriting Agreement (Oaktree Acquisition Corp. III), Underwriting Agreement (Oaktree Acquisition Corp. III)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any Option Closing Datesettlement date pursuant to Section 3 hereof, 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 to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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 Company shall have requested and caused Weil, Gotshal ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representatives its opinions and negative assurance letter, each dated the Closing Date and addressed to the Representatives, Representatives in a form reasonably and substance acceptable to the Representatives.
(c) The Company shall have requested and caused ▇▇▇▇▇▇ and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives in form and substance acceptable to the Representatives.
(d) The Representatives shall have received from Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, each dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives 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.
(de) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers signer of such certificate have has carefully examined the Registration Statement Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, as well as each road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(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 of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(ef) The Company shall have furnished to the Representatives a certificate signed by the Secretary or Assistant Secretary of the Company, dated the Closing Date, certifying (i) that the Amended and Restated Memorandum and Articles of Association of the Company are true and complete, have not been modified and are in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all correspondence between the Company or its counsel and the Commission, and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(g) The Company shall have requested and caused KPMG Withum to have furnished to the Representatives, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review an audit of the audited financial statements of the Company for the period from June 29September 1, 2020 (date of inception) through July 24September 9, 2020, provided that the cutoff date shall not be more than two business days Business Days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and;
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation; and
(iii) statements as to such other matters incident to the transaction contemplated hereby as the Representatives may reasonably request. References to the Prospectus in this paragraph (eg) include any supplement thereto at the date of the letter.
(fh) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (eg) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) ), earnings, business or prospects properties of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(g) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(hi) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(ij) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital MarketNew York Stock Exchange, satisfactory evidence of which shall have been provided to the Representatives.
(jk) On the Effective Date, the The Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives (i) executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement, the Services Agreement and the Insider Letters on the Closing Date and (ii) executed copies of the Founder’s Purchase Agreement and the Private Placement Warrants Purchase Agreement on the Effective Date.
(kl) At least one (1) Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(lm) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(g5(ii) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date;
(ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof;
(iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and
(v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. 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 Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein, on the Closing Date.
Appears in 3 contracts
Sources: Underwriting Agreement (Leo Holdings Corp. II), Underwriting Agreement (Leo Holdings Corp. II), Underwriting Agreement (Leo Holdings Corp. II)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, Time and the Closing Date and any Option Closing Datesettlement date pursuant to Section 3 hereof, 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 to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other 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 Company shall have requested and caused Weil, Gotshal ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP▇▇▇, counsel for the Company, to have furnished furnish to the Representatives Representative its opinions opinion and negative assurance letter10b-5 statement, each dated the Closing Date and addressed to the RepresentativesRepresentative, in a substantially the form reasonably acceptable to the Representativesof Annex B hereto.
(c) The Representatives Company shall have requested and caused ▇▇▇▇▇▇ ▇. ▇▇▇▇, in-house counsel for the Company, to furnish to the Representative his opinion, dated the Closing Date and addressed to the Representative, in substantially the form of Annex C hereto.
(d) The Representative shall have received from Ropes & ▇▇▇▇ LLP, the firm listed in the underwriting agreement as counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, each dated the Closing Date and addressed to the RepresentativesRepresentative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory ProspectusDisclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives Representative 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.
(de) The Company shall have furnished to the Representatives Representative a certificate of the Company, signed by (x) the Chief Executive Officer and (y) the principal financial or accounting officer Chief Financial Officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary ProspectusStatement, the Disclosure Package, the Final Prospectus and any amendment supplements or supplement amendments thereto, and this Agreement and thatthat to the best of their knowledge:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing 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 of the most recent financial statements included in the Statutory Prospectus Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse EffectEffect on the 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 Statutory Prospectus Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(ef) The Company shall have requested and caused KPMG to have furnished to the Representatives, at At the Execution Time and at the Closing Date, the Company shall have requested and caused Ernst & Young LLP to furnish to the Representative letters, dated respectively as of the Execution Time and as of the Closing Date, Date in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from June 29, 2020 (date of inception) through July 24, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letterRepresentative.
(fg) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement Disclosure Package (exclusive of any amendment thereof), the Statutory Prospectus ) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any adverse change or decrease specified in the letter or letters referred to in paragraph (ef) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) ), earnings, business or prospects properties of the CompanyCompany 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 Statutory Prospectus Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto) ), the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the RepresentativesRepresentative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(gh) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(i) Prior to the Closing Date, the Company shall have furnished to the Representatives Representative such further information, certificates and documents as the Representatives Representative may reasonably request.
(h) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(i) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(j) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement.
(k) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(g) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date;
(ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof;
(iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and
(v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the RepresentativesRepresentative. 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 Ropes & ▇▇▇▇ LLP, the underwriters’ counsel for set forth in the Underwriters, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated hereinUnderwriting Agreement, on the Closing Date.
Appears in 3 contracts
Sources: Equity Underwriting Agreement (Patriot Coal CORP), Equity Underwriting Agreement (Patriot Coal CORP), Equity Underwriting Agreement (Patriot Coal CORP)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Firm Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any Option Closing Datesettlement date pursuant to Section 4 hereof, 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 to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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 Company shall have requested and caused Weil, Gotshal ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representatives its opinions opinion and negative assurance letter, each 10b-5 statement dated the Closing Date and any settlement date, as applicable, and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(c) The Company shall have requested and caused ▇▇▇▇▇▇ and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and any settlement date, as applicable, and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(d) The Representatives shall have received from Ropes White & ▇▇▇▇ Case LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letter10b-5 statement, each dated the Closing Date and any settlement date, as applicable, and addressed to the Representatives, with respect in a form reasonably acceptable to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives 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 mattersRepresentatives.
(de) The Company shall have furnished to the Representatives a certificate of the Company, signed by the its Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing DateDate and any settlement date, as applicable, to the effect that the signers of such certificate have carefully examined the Registration Statement Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and each “road show” as defined in Rule 433(h) of the Act used in connection with the Offering, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date such date with the same effect as if made on the Closing Date such date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Datesuch 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 of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(ef) The Company shall have requested and caused KPMG ▇▇▇▇▇▇ to have furnished to the Representatives, at the Execution Time and at the Closing DateDate and any settlement date, as applicable, letters, dated respectively as of the Execution Time and as of the Closing DateDate and any settlement date, as applicable, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from June 29, 2020 (date of inception) through July 24, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(fg) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (ef) of this Section 6 7 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(gh) Prior to the Closing Date, and any settlement date, as applicable, the Company shall have furnished to the Representatives Representative such further information, certificates and documents as the Representatives may reasonably request.
(hi) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(ij) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital MarketNew York Stock Exchange, satisfactory evidence of which shall have been provided to the Representatives.
(jk) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and Agreement, the Insider Letter, the Administrative Services Agreement, the Registration and Shareholder Rights Agreement and the Forward Purchase Agreement. On With regard to the Insider Letter, if any additional persons shall become executive officers, directors, director nominees or advisory board members of the Company prior to the Closing Dateend of the 180-day restricted period referred to in Section 6(h), the Company will shall cause each such person, prior to or contemporaneously with their appointment or election as an executive officer, director and director nominee to execute and deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, Representative the Insider Letters and the Registration Rights AgreementLetter.
(kl) At The Sponsor (at least one Business Day prior to the Closing Effective Date, the Sponsor ) shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust AccountAccount so that together with the net proceeds for the Firm Securities (including the Deferred Discount), or with respect to the Option Securities, the net proceeds from the Option Securities (including the Deferred Discount), the Trust Account would equal the product of the number of Units sold and the public offering price per Unit as set forth on the cover of the Prospectus.
(lm) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(g6(ii) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date;
(ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof;
(iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and
(v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. If any of the conditions specified in this Section 6 7 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions, negative assurance letters opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. 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 7 and, if applicable, the last sentence of Section 4(d), shall be delivered at the office of Ropes White & ▇▇▇▇ Case LLP, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein, on the Closing DateDate or the applicable settlement date, as applicable.
Appears in 3 contracts
Sources: Underwriting Agreement (Pontem Corp), Underwriting Agreement (Pontem Corp), Underwriting Agreement (Pontem Corp)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Firm Securities and the Option Optional Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any Option Closing Datesettlement date pursuant to Section 4 hereof, 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 to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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 Company shall have requested and caused Weil, Gotshal & Ellenoff ▇▇▇▇▇▇▇▇ & Schole LLP, counsel for the Company, to have furnished to the Representatives its opinions and negative assurance letter, each dated the Closing Date and any settlement date, as applicable, and addressed to the Representatives, in a form reasonably acceptable to the RepresentativesRepresentative.
(c) The Representatives shall have requested and received from Ropes Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, each dated the Closing Date and any settlement date, as applicable, and addressed to the Representatives, with respect to the issuance and sale of the Offered Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives 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 Company shall have furnished to the Representatives a certificate of the Company, signed by the its Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, and any settlement date, as applicable, to the effect that the signers of such certificate have carefully examined the Registration Statement and each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and each road show used in connection with the Offering, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(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 of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(e) The Company shall have requested and caused KPMG ▇▇▇▇▇▇ to have furnished to the Representatives, at the Execution Time and at the Closing DateDate and any settlement date, as applicable, letters, dated respectively as of the Execution Time and as of the Closing DateDate and any settlement date, as applicable, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from June 29August 14, 2020 (date of inception) through July August 24, 2020, ; provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (eSection 7(e) include any supplement thereto at the date of the letter.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (eSection 7(e) of this Section 6 hereof or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Offered Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(g) Prior to the Closing DateDate and any settlement date, as applicable, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(h) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(i) The Offered Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital MarketNew York Stock Exchange, satisfactory evidence of which shall have been provided to the RepresentativesRepresentative.
(j) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement.
(k) At least one Business Day prior to the Closing DateDate or a settlement date, as applicable, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(g6(ii) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date;
(ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof;
(iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and
(v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. If any of the conditions specified in this Section 6 7 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions, negative assurance letters opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the RepresentativesRepresentative. 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 7 shall be delivered at the office of Ropes Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ , ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇ and P. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, unless otherwise indicated herein, on the Closing DateDate and any settlement date, as applicable.
Appears in 3 contracts
Sources: Underwriting Agreement (Cascade Acquisition Corp), Underwriting Agreement (Cascade Acquisition Corp), Underwriting Agreement (Cascade Acquisition Corp)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, Offered Notes shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any Option Closing Datein this Agreement, to the accuracy of the statements of the Company made in any applicable officers’ certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder under this Agreement and to the following additional conditionsconditions applicable to the Offered Notes:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no 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 instituted, or to the knowledge of the Company threatened, by the Commission.
(b) The Counsel to each of the Company and the Issuer (who shall have requested and caused Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for be satisfactory to the Company, to Representative) shall have furnished to the Representatives its opinions and negative assurance letterRepresentative an opinion or opinions, each dated the Closing Date Date, in each case in form and addressed substance reasonably satisfactory to the RepresentativesRepresentative, in a form reasonably acceptable relating to the Representativescertain enforceability, securities law and security interest matters.
(c) In-house counsel for the Company shall have furnished to the Representative an opinion, dated the Closing Date, in form and substance reasonably satisfactory to the Representative.
(d) The Representatives Representative shall have received from Ropes & ▇▇▇▇ LLP[___], counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, each dated the related Closing Date and addressed to the RepresentativesDate, with respect to the issuance and sale of the SecuritiesOffered Notes, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and such other related matters as the Representatives Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they the Representative may reasonably request for the purpose of enabling them to pass upon such matters.
(de) The Company shall have furnished to the Representatives Representative a certificate of the Company, signed by the Chief Executive Officer and President, any Vice President, or the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers signer of such certificate have has carefully examined the Registration Statement each Preliminary Prospectus, Program Documents to which the Prospectus and any amendment or supplement theretoCompany is a party, and this Agreement and that:
(i) , to the best of such person’s knowledge after reasonable investigation, the representations and warranties of the Company in this Agreement and Program Documents to which the Company is a party are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date in all material respects, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing 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 of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(ef) The Company Counsel for the Indenture Trustee (who shall have requested and caused KPMG be satisfactory to the Representative) shall have furnished to the Representatives, at the Execution Time and at the Closing Date, lettersRepresentative an opinion, dated respectively as of the Execution Time and as of the Closing Date, in form and substance reasonably satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect Representative.
(g) Counsel for the Owner Trustee (who shall be satisfactory to the Company within Representative) shall have furnished to the meaning of Representative an opinion, dated the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from June 29, 2020 (date of inception) through July 24, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicablein form and substance reasonably satisfactory to the Representative.
(h) Counsel for the Company (who shall be satisfactory to the Representative) shall have furnished to the Representative an opinion, dated the Closing Date, in form and stating in effect that:substance reasonably satisfactory to the Representative, relating to certain insolvency and bankruptcy matters and federal income tax matters.
(i) in their opinion The Representative shall have received a letter, dated the audited financial statements Closing Date or such other date as may be agreed upon between the Representative and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References from certified public accountants (who shall be satisfactory to the Prospectus Representative), substantially in this paragraph (e) include any supplement thereto at the date of form previously approved by the letterRepresentative.
(fj) Subsequent to The Offered Notes shall have received the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease ratings specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto)Prospectus.
(gk) Prior to the Closing Date, the Company shall have furnished to the Representatives Underwriter such further information, certificates and documents as the Representatives Representative may reasonably request.
(hl) FINRA shall not have raised any objection with respect Subsequent to the fairness or reasonableness date of the underwriting or other arrangements of the transactions contemplated hereby.
(i) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital MarketProspectus, satisfactory evidence of which shall have been provided to the Representatives.
(j) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement.
(k) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(g) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date;
(ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof;
(iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and
(v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. If any of the conditions specified in this Section 6 there shall not have been fulfilled when and as provided any material adverse change in this Agreement, the business or if any properties of the opinionsCompany which in the Representative’s reasonable judgment, negative assurance letters and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to after consultation with the Representatives and counsel for Company, materially impairs the Underwriters, this Agreement and all obligations investment quality of the Underwriters hereunder may be canceled at, Offered Notes so as to make it impractical or at any time prior to, inadvisable to proceed with the Closing Date public offering or the delivery of such Offered Notes as contemplated by the Representatives. 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 Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein, on the Closing DateProspectus.
Appears in 3 contracts
Sources: Underwriting Agreement (Higher Education Funding I), Underwriting Agreement (Higher Education Funding I), Underwriting Agreement (Higher Education Funding I)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Firm Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any Option Closing Datesettlement date pursuant to Section 4 hereof, 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 to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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 Company shall have requested and caused Weil, Gotshal & K▇▇▇▇▇▇▇ & E▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representatives Representative its opinions and negative assurance letter, each dated the Closing Date and any settlement date, as applicable, and addressed to the RepresentativesRepresentative, in a form reasonably acceptable to the RepresentativesRepresentative.
(c) The Representatives Company shall have requested and caused M▇▇▇▇▇ and Calder, Cayman Islands counsel for the Company, to have furnished to the Representative its opinions dated the Closing Date and any settlement date, as applicable, and addressed to the Representative, in a form reasonably acceptable to the Representative.
(d) The Representative shall have received from Ropes Skadden, Arps, Slate, M▇▇▇▇▇▇ & ▇F▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, each dated the Closing Date and any settlement date, as applicable, and addressed to the RepresentativesRepresentative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives Representative 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.
(de) The Company shall have furnished to the Representatives Representative a certificate of the Company, signed by the its Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing DateDate and any settlement date, as applicable, to the effect that the signers of such certificate have carefully examined the Registration Statement Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and each “road show” as defined in Rule 433(h) of the Act used in connection with the Offering, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date such date with the same effect as if made on the Closing Date such date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Datesuch 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 of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(ef) The Company shall have requested and caused KPMG Withum to have furnished to the RepresentativesRepresentative, at the Execution Time and at the Closing DateDate and any settlement date, as applicable, letters, dated respectively as of the Execution Time and as of the Closing DateDate and any settlement date, as applicable, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from June 29, 2020 (date of inception) through July 24, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letterRepresentative.
(fg) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (ef) of this Section 6 7 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the RepresentativesRepresentative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(gh) Prior to the Closing Date, and any settlement date, as applicable, the Company shall have furnished to the Representatives Representative such further information, certificates and documents as the Representatives Representative may reasonably request.
(hi) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(ij) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital MarketNew York Stock Exchange, satisfactory evidence of which shall have been provided to the RepresentativesRepresentative.
(jk) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider Letters Letter, the Registration and Shareholder Rights Agreement and the Registration Rights Administrative Services Agreement.
(kl) At least one Business Day prior to the Closing DateDate or a settlement date, as applicable, the Sponsor Company shall have caused proceeds from the purchase price for sale of the Private Placement Warrants to be deposited into the Trust AccountAccount such that the cumulative amount deposited into the Trust Account as of such Closing Date or such settlement date, as applicable, shall equal the product of the number of Units issued in the Offering as of such Closing Date or such settlement date, as applicable, and the public offering price per Unit as set forth on the cover of the Prospectus.
(lm) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives Representative pursuant to Section 5(g6(ii) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date;
(ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof;
(iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and
(v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. If any of the conditions specified in this Section 6 7 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions, negative assurance letters opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the RepresentativesRepresentative. 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 7 and, if applicable, the last sentence of Section 4(c), shall be delivered at the office of Ropes Skadden, Arps, Slate, M▇▇▇▇▇▇ & ▇F▇▇▇ LLP, counsel for the Underwriters, at 5▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: G▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein, on the Closing DateDate or the applicable settlement date, as applicable.
Appears in 3 contracts
Sources: Underwriting Agreement (JAWS Spitfire Acquisition Corp), Underwriting Agreement (Horizon Acquisition Corp II), Underwriting Agreement (Horizon Acquisition Corp)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Applicable Time, the Closing Date and any Option Closing Datesettlement date pursuant to Section 3 hereof, 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 to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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 Company shall have requested and caused Weil, Gotshal ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representatives Representative its opinions and negative assurance letter, each dated the Closing Date or the settlement date, as the case may be, and addressed to the RepresentativesRepresentative, in a form satisfactory to the Representative.
(c) The Company shall have requested and caused ▇▇▇▇▇▇ and Calder (Cayman) LLP, Cayman Islands counsel for the Company, to have furnished to the Representative its opinions dated the Closing Date or the settlement date, as the case may be, and addressed to the Representative, in a form reasonably acceptable to the RepresentativesRepresentative.
(cd) The Representatives Representative shall have received from Ropes Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, each dated the Closing Date or the settlement date, as the case may be, and addressed to the RepresentativesRepresentative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives Representative 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.
(de) The Company shall have furnished to the Representatives Representative a certificate of the Company, signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing DateDate or the settlement date, as the case may be, to the effect that the signers of such certificate have carefully examined the Registration Statement Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date such date with the same effect as if made on the Closing Date such date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Datesuch 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 of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(ef) The Company shall have requested and caused KPMG Withum to have furnished to the RepresentativesRepresentative, at the Execution Applicable Time and at the Closing DateDate or the settlement date, as the case may be, letters, dated respectively as of the Execution Applicable Time and as of the Closing Date, in form and substance satisfactory to the RepresentativesRepresentative, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from June 29December 8, 2020 2021 (date of inception) through July 24December 31, 2020, 2021; provided that the cutoff date shall not be more than two business days prior to such Execution Applicable Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (ef) include any supplement thereto at the date of the letter.
(fg) Subsequent to the Execution Applicable Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (ef) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the RepresentativesRepresentative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(gh) Prior to the Closing DateDate or the settlement date, as the case may be, the Company shall have furnished to the Representatives Representative such further information, certificates and documents as the Representatives Representative may reasonably request.
(hi) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(ij) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Global Market, satisfactory evidence of which shall have been provided to the RepresentativesRepresentative.
(jk) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Subscription Agreement, the Warrant Purchase Agreement, the Insider Letters Letter, the Registration and Shareholder Rights Agreement and the Registration Rights Administrative Services Agreement.
(kl) At least one Business Day prior to the Closing DateDate or the settlement date, as the case may be, the Sponsor shall have caused the purchase price for the Private Placement Warrants and the Overfunding Loans to be wired to the Company and the Company shall direct the trustee to deposit such funds into the Trust Account and to hold such funds in the Trust Account such that the cumulative amount deposited into the Trust Account as of such Closing Date or settlement date shall equal the product of the number of Units sold in the Offering as of such Closing Date or settlement date and the public offering price per Unit as set forth on the cover of the Prospectus, plus an amount equal to $10.20 of each Unit issued in the Offering as of such Closing Date or settlement date, as the case may be. Notwithstanding the foregoing, in no event will the Company take any action that would result in the Company receiving proceeds from the sale of the Private Placement Warrants and the Overfunding Loans in excess of the sum of: (i) the amount required to satisfy the obligation in the immediately preceding sentence; (ii) the amount of the discount from the public offering price represented by the purchase price and (iii) the amount of money to be held by the Company outside of the Trust Account, as disclosed in the Registration Statement, the Statutory Prospectus and the Prospectus.
(lm) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives Representative pursuant to Section 5(g5(ii) hereof shall have been issued as of the Closing DateDate or the settlement date, as the case may be, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date;
(ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof;
(iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and
(v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the RepresentativesRepresentative. 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 Ropes Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein, on the Closing Date.
Appears in 2 contracts
Sources: Underwriting Agreement (SK Growth Opportunities Corp), Underwriting Agreement (SK Growth Opportunities Corp)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Firm Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any Option Closing Datesettlement date pursuant to Section 4 hereof, 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 to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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 Company shall have requested and caused Weil, Gotshal ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representatives its opinions and negative assurance letter, each dated the Closing Date and any settlement date, as applicable, and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(c) [Reserved]
(d) The Representatives shall have received from Ropes Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, each dated the Closing Date and any settlement date, as applicable, and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives 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.
(de) The Company shall have furnished to the Representatives a certificate of the Company, signed by the its Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing DateDate and any settlement date, as applicable, to the effect that the signers of such certificate have carefully examined the Registration Statement Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and each “road show” as defined in Rule 433(h) of the Act used in connection with the Offering, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date such date with the same effect as if made on the Closing Date such date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Datesuch 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 of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(ef) The Company shall have requested and caused KPMG Withum to have furnished to the Representatives, at the Execution Time and at the Closing DateDate and any settlement date, as applicable, letters, dated respectively as of the Execution Time and as of the Closing DateDate and any settlement date, as applicable, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from June 29, 2020 (date of inception) through July 24, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(fg) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (ef) of this Section 6 7 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(gh) Prior to the Closing Date, and any settlement date, as applicable, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(hi) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(ij) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital MarketNasdaq, satisfactory evidence of which shall have been provided to the Representatives.
(jk) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider Letter, the Registration and Stockholder Rights Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement.
(kl) At least one Business Day prior to the Closing DateDate or a settlement date, as applicable, the Sponsor Company shall have caused proceeds from the purchase price for sale of the Private Placement Warrants to be deposited into the Trust AccountAccount such that the cumulative amount deposited into the Trust Account as of such Closing Date or such settlement date, as applicable, shall equal the product of the number of Units issued in the Offering as of such Closing Date or such settlement date, as applicable, and the public offering price per Unit as set forth on the cover of the Prospectus.
(lm) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(g6(ii) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date;
(ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof;
(iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and
(v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. If any of the conditions specified in this Section 6 7 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions, negative assurance letters opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. 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 7 and, if applicable, the last sentence of Section 4(c), shall be delivered at the office of Ropes Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein, on the Closing DateDate or the applicable settlement date, as applicable.
Appears in 2 contracts
Sources: Underwriting Agreement (Jaws Hurricane Acquisition Corp), Underwriting Agreement (Jaws Hurricane Acquisition Corp)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any Option Closing Datesettlement date pursuant to Section 3 hereof, 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 to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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 Company shall have requested and caused Weil, Gotshal ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Company, to have furnished to each of the Representatives its opinions their opinion and negative assurance letter, each dated the Closing Date and addressed to each of the Representatives, in a form and substance reasonably acceptable satisfactory to the Representatives.
(c) The Company shall have requested and caused ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, special counsel for the Company with respect to certain intellectual property matters, to have furnished to each of the Representatives their opinion, dated the Closing Date and addressed to each of the Representatives, in form and substance reasonably satisfactory to the Representatives.
(d) The Company shall have requested and caused ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, special counsel for the Company with respect to certain regulatory matters, to have furnished to each of the Representatives their opinion, dated the Closing Date and addressed to each of the Representatives, in form and substance reasonably satisfactory to the Representatives.
(e) The Representatives shall have received from Ropes ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, each dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory ProspectusDisclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representatives 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.
(df) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer and the principal financial or accounting officer Chief Financial Officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary ProspectusStatement, the Disclosure Package, the Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(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 of the most recent financial statements included in the Statutory Prospectus Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(eg) The Company shall have requested and caused KPMG each of Ernst & Young LLP and ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, Inc. to have furnished to each of the Representatives, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from June 29, 2020 (date of inception) through July 24, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(fh) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus ) and the Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (eg) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) ), earnings, business or prospects properties of the CompanyCompany and the Subsidiary 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 Statutory Prospectus Disclosure Package and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(gi) Prior to the Closing Date, the Company shall have furnished to each of the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(h) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(ij) The Securities shall be duly have been listed subject to notice of issuance and admitted and authorized for trading on the Nasdaq Capital MarketNew York Stock Exchange, and satisfactory evidence of which such actions shall have been provided to the Representatives.
(jk) On At or prior to the Effective DateExecution Time, the Company shall have delivered furnished to the Representatives executed copies a letter substantially in the form of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement Addendum hereto from each officer and the Administrative Services Agreement. On or prior to the Closing Date, director of the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement.
(k) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(g) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer each holder of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date;
(ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof;
(iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory ’s equity securities addressed to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and
(v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. 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 Ropes & ▇▇▇▇ LLPof, counsel for the Underwriters, at ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ ▇▇ LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein, on the Closing Date.
Appears in 2 contracts
Sources: Underwriting Agreement (Singulex Inc), Underwriting Agreement (Singulex Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any Option Closing Datesettlement date pursuant to Section 3 hereof, 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 to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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 Company shall have requested and caused Weil, Gotshal ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representatives Representative its opinions and negative assurance letter, each letter dated the Closing Date or settlement date (as applicable) and addressed to the RepresentativesRepresentative, in a form reasonably acceptable to the RepresentativesRepresentative.
(c) The Representatives Representative shall have received from Ropes & ▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or its opinions and negative assurance letter, each dated the Closing Date or settlement date (as applicable) and addressed to the RepresentativesRepresentative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives Representative 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 Company shall have furnished to the Representatives Representative a certificate of the Company, signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing DateDate or settlement date (as applicable), to the effect that the signers of such certificate have carefully examined the Registration Statement Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, as well as each road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date or settlement date (as applicable) with the same effect as if made on the Closing Date or settlement date (as applicable), and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing DateDate or settlement date (as applicable);
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued 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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(e) The Company shall have furnished to the Representative a certificate signed by the Chief Operating Officer of the Company, dated the Closing Date, certifying that the Amended and Restated Certificate of Incorporation and bylaws of the Company are true and complete, have not been modified and are in full force and effect, that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, copies of all correspondence between the Company or its counsel and the Commission, and as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(f) The Company shall have requested and caused KPMG ▇▇▇▇▇▇ to have furnished to the RepresentativesRepresentative, at the Execution Time and at the Closing DateDate or settlement date (as applicable), letters, dated respectively as of the Execution Time and as of the Closing DateDate or settlement date (as applicable), in form and substance satisfactory to the RepresentativesRepresentative, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for included in the period from June 29Registration Statement, 2020 (date of inception) through July 24, 2020, Statutory Prospectus and Prospectus; provided that the cutoff date shall not be more than two business days Business Days prior to such Execution Time or Closing DateDate or settlement date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (ef) include any supplement thereto at the date of the letter.
(fg) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, which is, in the sole judgment of the RepresentativesRepresentative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(gh) Prior to the Closing DateDate or settlement date (as applicable), the Company shall have furnished to the Representatives Representative such further information, certificates and documents as the Representatives Representative may reasonably request.
(hi) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(ij) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital MarketNew York Stock Exchange, satisfactory evidence of which shall have been provided to the RepresentativesRepresentative.
(jk) On the Effective Closing Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives Representative executed copies of the Trust Agreement, the Warrant Agreement, the Securities Subscription Agreement, the Warrant Purchase Agreement, , the Insider Letters Letter and the Registration and Stockholder Rights Agreement.
(kl) At least one Business Day prior to the Closing DateDate or settlement date (as applicable), the Sponsor Company shall have caused the applicable purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(lm) No order preventing or suspending the sale of the Units Securities in any jurisdiction designated by the Representatives Representative pursuant to Section 5(g5(ii) hereof shall have been issued as of the Closing DateDate or settlement date (as applicable), and no proceedings for that purpose shall have been instituted or shall have been threatened.
(mn) The several obligations On or before the date of this Agreement, the Representative shall have received a certificate satisfying the beneficial ownership due diligence requirements of the Underwriters to purchase Option Securities hereunder are subject to Financial Crimes Enforcement Network (“FinCEN”) from the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date;
(ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof;
(iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof;
(iv) a letter dated the Option Closing Date, Company in form and substance reasonably satisfactory to the RepresentativesRepresentative, from KPMG substantially in the same form and substance along with such additional supporting documentation as the letter furnished to Representative has requested in connection with the Underwriters pursuant to Section 6(e) hereof; provided that verification of the cutoff date shall not be more than two business days prior to such Option Closing Date; and
(v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securitiesforegoing certificate. 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, negative assurance letters opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled cancelled at, or at any time prior to, the Closing Date by the RepresentativesRepresentative. 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 Ropes & in electronic format to ▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇▇▇ ▇Attention: ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein, on the Closing DateDate or settlement date (as applicable).
Appears in 2 contracts
Sources: Underwriting Agreement (Figure Acquisition Corp. I), Underwriting Agreement (Figure Acquisition Corp. I)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, Time and the Closing Date (including, for the avoidance of doubt, compliance with covenants and any Option Closing Dateconditions in the indentures of the Company relating to the creation, assumption or incurrence of funded indebtedness), to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereofof this Section, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(ai) The Prospectus, and any supplement thereto, Canadian Final Prospectus shall have been filed with the Reviewing Authority under the Shelf Procedures and (ii) the U.S. Final Prospectus shall have been filed with the Commission pursuant to General Instruction II.K. of Form F-9 under the Act, in the manner and each case, within the applicable time period required by Rule 424(b)prescribed for such filing and in accordance with Section 4(a) hereof; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use part thereof shall have been issued and no proceedings order preventing or suspending the use of any prospectus relating to the Securities shall have been issued and no proceeding for that any such purpose shall have been instituted initiated or threatened.threatened by the Commission or the Reviewing Authority;
(b) The Company shall have requested and caused WeilMayer, Gotshal & ▇▇Brown, ▇▇▇▇ LLP& Maw, U.S. counsel for the Company, to have furnished to the Representatives its opinions and negative assurance letterRepresentative their opinion, each dated the Closing Date and addressed to the RepresentativesRepresentative, in a form reasonably acceptable to the Representatives.effect set forth in Annex I hereto;
(c) The Representatives shall have received from Ropes & ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, Canadian counsel for the Company, shall have furnished to the Representative their opinion, dated the Closing Date and addressed to the Representative, with respect to the laws of the Province of Alberta and the federal laws of Canada applicable therein, to the effect set forth in Annex II;
(d) The Representative shall have received from Shearman & Sterling, U.S. counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, each dated the Closing Date and addressed to the RepresentativesRepresentative, with respect to the issuance and sale of the Securities, the Indenture (if applicable), the Registration Statement, the Statutory Prospectus, the U.S. Final Prospectus (together with any supplement thereto) and other related matters as the Representatives Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they reasonably require and request for the purpose of enabling them to pass upon such matters.;
(de) The Representative shall have received from United States in-house counsel to the Company, an opinion to the effect set forth in Annex III;
(f) The Company shall have furnished to the Representatives Representative a certificate of the Company, signed by the President and Chief Executive Officer and the principal financial or accounting officer Executive Vice-President Corporate Development and Chief Financial Officer of the Company, dated the Closing Date, to the effect that that:
(i) the signers of such certificate have carefully examined the Registration Statement each Preliminary Statement, the Canadian Final Prospectus and the U.S. Final Prospectus, any supplements to the Canadian Final Prospectus and any amendment or supplement thereto, the U.S. Final Prospectus and this Agreement and that:Agreement;
(iii) the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(iiiii) no stop order suspending the effectiveness of the Registration Statement or stop order preventing or suspending the use of any notice objecting prospectus relating to its use the Securities has been issued and no proceedings for that purpose have been instituted orbeen, to the Company’s 's knowledge, threatened; andinstituted or threatened by the Reviewing Authority or the Commission;
(iiiiv) since the date of the most recent financial statements included or incorporated by reference in the Statutory Prospectus Canadian Final Prospectus, as amended or supplemented prior to the Execution Time and the Prospectus (exclusive of any supplement thereto)U.S. Final Prospectus, as amended or supplemented prior to the Execution Time, there has been no Material Adverse Effectmaterial adverse effect on 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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(e) The Company shall have requested and caused KPMG Canadian Final Prospectus, as amended or supplemented prior to have furnished to the Representatives, at the Execution Time and at the U.S. Final Prospectus, as amended or supplemented prior to the Execution Time; and
(v) the Company is in compliance with the covenants and conditions in the indentures of the Company relating to the creation, assumption or incurrence of funded indebtedness;
(g) At the Execution Time and the Closing Date, letters, the Representative shall have received from KPMG LLP a letter or letters dated respectively as of the Execution Time and as of the Closing Datesuch date or dates, in form and substance satisfactory to the RepresentativesRepresentative, confirming that they are a registered public accounting firm that is independent together with signed or reproduced copies of such letter or letters for each of the other Underwriters containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from June 29, 2020 (date of inception) through July 24, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and certain financial statement schedules included information contained in the Registration Statement, the Statutory U.S. Final Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; andCanadian Final Prospectus;
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(fh) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof)as amended or supplemented prior to the Execution Time, the Statutory Prospectus and the Canadian Final Prospectus (exclusive of any supplement thereto)as amended or supplemented prior to the Execution Time and the U.S. Final Prospectus as amended or supplemented prior to the Execution Time, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (eg) of this Section 6 5 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) ), earnings, business or prospects properties of the CompanyCompany 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 Statutory Prospectus Canadian Final Prospectus, as amended or supplemented prior to the Execution Time and the Prospectus (exclusive of any supplement thereto) U.S. Final Prospectus, as amended or supplemented prior to the Execution Time, the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the RepresentativesRepresentative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), and the Statutory Canadian Final Prospectus and the Prospectus U.S. Final Prospectus;
(exclusive i) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any supplement thereto).of the Company's debt securities by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change;
(gj) If the Registration Statement or an offering of Securities has been filed with the NASD for review, the NASD shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements;
(k) Prior to the Closing Date, the Company shall have furnished to the Representatives Representative such further information, certificates and documents as the Representatives Representative may reasonably request.
(h) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(i) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(j) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement.
(k) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(g) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date;
(ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof;
(iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and
(v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. If any of the conditions specified in this Section 6 5 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions, negative assurance letters opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the RepresentativesRepresentative. 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 5 shall be delivered at the office of Ropes & ▇the Company, Attention: Corporate Finance Law Department, ▇▇▇ LLP, counsel for the Underwriters, at ▇- ▇▇▇ ▇▇▇▇▇▇ ▇▇ .▇., ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein, on the Closing DateDate or such other place as the Representative shall so instruct.
Appears in 2 contracts
Sources: Underwriting Agreement (Transcanada Pipelines LTD), Underwriting Agreement (Transcanada Pipelines LTD)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any Option Closing Datesettlement date pursuant to Section 3 hereof, 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 to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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 Company shall have requested and caused Weil, Gotshal & ▇M▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representatives its opinions and negative assurance letter, each dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(c) The Company shall have requested and caused M▇▇▇▇▇ and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives
(d) The Representatives shall have received from Ropes & ▇G▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, each dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives 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.
(de) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer President and the principal financial or accounting officer of the Company, dated the Closing DateDate or settlement date (as applicable), to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement 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 the Closing Date or settlement date (as applicable) with the same effect as if made on the Closing Date or settlement date (as applicable) and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing DateDate or settlement date (as applicable);
(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 of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(ef) The Company shall have requested and caused KPMG to have furnished to the Representatives, at the Execution Time and at the Closing DateDate or settlement date (as applicable), letters, dated respectively as of the Execution Time and as of the Closing DateDate or settlement date (as applicable), in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review an audit of the audited financial statements of the Company for the period from June 29January 4, 2020 2021 (date of inception) through July 24March [●], 20202021, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing DateDate or settlement date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (ef) include any supplement thereto at the date of the letter.
(fg) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (ef) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(gh) Prior to the Closing DateDate or settlement date (as applicable), the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(hi) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(ij) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital MarketNew York Stock Exchange, satisfactory evidence of which shall have been provided to the Representatives.
(jk) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Forward Purchase Agreement, the Additional Forward Purchase Agreement, the Share Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement.
(kl) At least one Business Day prior to the Closing DateDate or settlement date (as applicable), the Sponsor shall have caused the purchase price for the Private Placement Warrants Shares to be deposited into the Trust Account.
(lm) No order preventing or suspending the sale of the Units Ordinary Shares in any jurisdiction designated by the Representatives pursuant to Section 5(g5(ii) hereof shall have been issued as of the Closing DateDate or settlement date (as applicable), and no proceedings for that purpose shall have been instituted or shall have been threatened.
(m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate signed by the Chief Executive Officer and the principal financial threatened or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as 8A of such Option Closing Date;
(ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof;
(iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and
(v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option SecuritiesAct. 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, negative assurance letters opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. 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 Ropes & ▇G▇▇▇ LLP, counsel for the Underwriters, at ▇1▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: P▇▇▇ ▇. ▇▇▇▇▇ and C▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, unless otherwise indicated herein, on the Closing Date.
Appears in 2 contracts
Sources: Underwriting Agreement (TPG Pace Tech Opportunities II Corp.), Underwriting Agreement (TPG Pace Beneficial II Corp.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the any Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Manager contained herein as of the Execution Time, the Closing Date and any Option Closing Datesettlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company and the Manager made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other 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 Company At the Closing Date, the Representatives shall have requested received the favorable opinion, dated as of the Closing Date, of each of Sidley Austin LLP and caused Weil, Gotshal ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the CompanyCompany and the Manager, in form and substance reasonably satisfactory to counsel for the Underwriters, together with signed or reproduced copies of such letter for each of the other Underwriters substantially in the form set forth in Exhibit A and Exhibit B hereto, respectively, and to such further effect as counsel to the Underwriters may reasonably request. In rendering each such opinion, as applicable, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of New York or the Federal laws of the United States, to have furnished the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the Representatives its opinions extent they deem proper, on certificates of responsible officers of the Company and negative assurance letter, each dated public officials. References to the Final Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the RepresentativesDate.
(c) The Representatives shall have received from Ropes Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, each dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory ProspectusDisclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives 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 Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary ProspectusStatement, the Disclosure Package, the Final Prospectus and any amendment supplements or supplement amendments thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(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 of the most recent financial statements included or incorporated by reference in the Statutory Prospectus Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effectmaterial adverse effect on the 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 Statutory Prospectus Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(e) The Manager shall have furnished to the Representatives a certificate of the Manager, signed by the President of the Manager, dated the Closing Date, to the effect that the signer of such certificate has carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that the representations and warranties of the Manager in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date.
(f) The Company shall have requested and caused KPMG Deloitte & Touche LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, lettersletters (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements and certain financial information of the Company for the period from June 29, 2020 (date of inception) through July 24, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time and LNR contained or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included incorporated by reference in the Registration Statement, the Statutory Prospectus Disclosure Package and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Final Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(fg) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus ) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (ef) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) ), earnings, business or prospects properties of the CompanyCompany 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 Statutory Prospectus Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(gh) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(hi) FINRA shall not have raised any objection with respect Prior to the fairness or reasonableness of Closing Date, the underwriting or other arrangements of the transactions contemplated hereby.
(i) The Securities shall be duly have been listed subject to notice of issuance and admitted and authorized for trading on the Nasdaq Capital MarketNew York Stock Exchange, and satisfactory evidence of which such actions shall have been provided to the Representatives.
(j) On At the Effective DateExecution Time, the Company shall have delivered furnished to the Representatives executed copies a letter substantially in the form of Exhibit C hereto from (i) each officer and director of the Securities Assignment AgreementCompany (other than ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇), (ii) each officer of the Founder’s Purchase AgreementManager, the Warrant Subscription Agreement ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and the Administrative Services Agreement. On or prior ▇▇▇▇▇▇ ▇▇ ▇▇▇▇, and (iii) SPT Investment, LLC, in each case addressed to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights AgreementRepresentatives.
(k) At least one Business Day prior to the Closing DateExecution Time, the Sponsor Company shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(g) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery furnished to the Representatives on a letter substantially in the applicable Option Closing Date form of the following:
Exhibit D hereto from (i) a certificate signed by the Chief Executive Officer Manager and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date;
(ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof;
(iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof;
(iv) a letter dated the Option Closing Date▇▇, in form and substance satisfactory each case addressed to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and
(v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. 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 Ropes Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇Four Times Square, ▇▇▇ ▇▇▇▇New York, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇New York, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein10036-6522, on the Closing Date.
Appears in 2 contracts
Sources: Underwriting Agreement (Starwood Property Trust, Inc.), Underwriting Agreement (Starwood Property Trust, Inc.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Firm Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any Option Closing Datesettlement date pursuant to Section 4 hereof, 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 to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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 Company shall have requested and caused Weil, Gotshal & Ellenoff ▇▇▇▇▇▇▇▇ & Schole LLP, counsel for the Company, to have furnished to the Representatives Representative its opinions and negative assurance letter, each dated the Closing Date and any settlement date, as applicable, and addressed to the RepresentativesRepresentative, in a form reasonably acceptable to the RepresentativesRepresentative.
(c) The Representatives Representative shall have received from Ropes Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, each dated the Closing Date and any settlement date, as applicable, and addressed to the RepresentativesRepresentative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives Representative 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 Company shall have furnished to the Representatives Representative a certificate of the Company, signed by the its Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing DateDate and any settlement date, as applicable, to the effect that the signers of such certificate have carefully examined the Registration Statement Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and each “road show” as defined in Rule 433(h) of the Act used in connection with the Offering, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date such date with the same effect as if made on the Closing Date such date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Datesuch 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 of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(e) The Company shall have requested and caused KPMG ▇▇▇▇▇▇ to have furnished to the RepresentativesRepresentative, at the Execution Time and at the Closing DateDate and any settlement date, as applicable, letters, dated respectively as of the Execution Time and as of the Closing DateDate and any settlement date, as applicable, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from June 29, 2020 (date of inception) through July 24, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letterRepresentative.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (ef) of this Section 6 7 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the RepresentativesRepresentative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(g) Prior to the Closing Date, and any settlement date, as applicable, the Company shall have furnished to the Representatives Representative such further information, certificates and documents as the Representatives Representative may reasonably request.
(h) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(i) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital MarketNew York Stock Exchange, satisfactory evidence of which shall have been provided to the RepresentativesRepresentative.
(j) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider Letters Letter, the Registration and Shareholder Rights Agreement and the Registration Rights Administrative Services Agreement.
(k) At least one Business Day prior to the Closing DateDate or a settlement date, as applicable, the Sponsor Company shall have caused proceeds from the purchase price for sale of the Private Placement Warrants to be deposited into the Trust AccountAccount such that the cumulative amount deposited into the Trust Account as of such Closing Date or such settlement date, as applicable, shall equal the product of the number of Units issued in the Offering as of such Closing Date or such settlement date, as applicable, and the public offering price per Unit as set forth on the cover of the Prospectus.
(l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives Representative pursuant to Section 5(g6(ii) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date;
(ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof;
(iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and
(v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. If any of the conditions specified in this Section 6 7 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions, negative assurance letters opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the RepresentativesRepresentative. 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 7 and, if applicable, the last sentence of Section 4(c), shall be delivered at the office of Ropes Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇; ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, unless otherwise indicated herein, on the Closing DateDate or the applicable settlement date, as applicable.
Appears in 2 contracts
Sources: Underwriting Agreement (Class Acceleration Corp.), Underwriting Agreement (Class Acceleration Corp.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any Option Closing Datesettlement date pursuant to Section 3 hereof, 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 to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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 Company shall have requested and caused Weil, Gotshal ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representatives Representative its opinions and negative assurance letter, each dated the Closing Date and addressed to the RepresentativesRepresentative, in a form reasonably acceptable to the RepresentativesRepresentative.
(c) The Representatives Company shall have requested and caused ▇▇▇▇▇▇ Group, Cayman Islands counsel for the Company, to have furnished to the Representative its opinions dated the Closing Date and addressed to the Representative, in a form reasonably acceptable to the Representative.
(d) The Representative shall have received from Ropes ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, each dated the Closing Date and addressed to the RepresentativesRepresentative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives Representative 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.. Credit Suisse Securities (USA) LLC [●], 2021
(de) The Company shall have furnished to the Representatives Representative a certificate of the Company, signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement 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 the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(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 of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(ef) The Company shall have requested and caused KPMG Withum to have furnished to the RepresentativesRepresentative, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the RepresentativesRepresentative, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from June 29August 31, 2020 (date of inception) through July 24September 2, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical Credit Suisse Securities (USA) LLC [●], 2021 information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(fg) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the RepresentativesRepresentative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(gh) Prior to the Closing Date, the Company shall have furnished to the Representatives Representative such further information, certificates and documents as the Representatives Representative may reasonably request.
(hi) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(ij) The Securities shall be duly listed subject to notice of issuance on the The Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the RepresentativesRepresentative.
(jk) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider Letters Letters, the Registration and Shareholder Rights Agreement and the Registration Rights Administrative Services Agreement.
(kl) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account.. Credit Suisse Securities (USA) LLC [●], 2021
(lm) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives Representative pursuant to Section 5(g5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date;
(ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof;
(iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and
(v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the RepresentativesRepresentative. 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 Ropes ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein, on the Closing Date.
Appears in 2 contracts
Sources: Underwriting Agreement (TZP Strategies Acquisition Corp.), Underwriting Agreement (TZP Strategies Acquisition Corp.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any Option Closing Datesettlement date pursuant to Section 3 hereof, 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 to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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 Company shall have requested and caused Weil, Gotshal & K▇▇▇▇▇▇▇ & E▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representatives its opinions and negative assurance letter, each dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(c) The Representatives shall have received from Ropes D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, each dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives 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 Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing DateDate or settlement date (as applicable), to the effect that the signers of such certificate have carefully examined the Registration Statement Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, as well as each road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date or settlement date (as applicable) with the same effect as if made on the Closing Date or settlement date (as applicable), and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing DateDate or settlement date (as applicable);
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued 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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(e) The Company shall have furnished to the Representatives a certificate signed by the Secretary or Assistant Secretary of the Company, dated the Closing Date, certifying that the Amended and Restated Certificate of Incorporation and bylaws of the Company are true and complete, have not been modified and are in full force and effect, that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, copies of all correspondence between the Company or its counsel and the Commission, and as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(f) The Company shall have requested and caused KPMG WithumSmith to have furnished to the Representatives, at the Execution Time and at the Closing DateDate or settlement date (as applicable), letters, dated respectively as of the Execution Time and as of the Closing DateDate or settlement date (as applicable), in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for included in the period from June 29Registration Statement, 2020 (date of inception) through July 24, 2020Statutory Prospectus and Prospectus, provided that the cutoff date shall not be more than two business days Business Days prior to such Execution Time or Closing DateDate or settlement date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e(f) include any supplement thereto at the date of the letter.
(fg) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e(f) of this Section 6 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i(i) or (ii(ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(gh) Prior to the Closing DateDate or settlement date (as applicable), the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(hi) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(ij) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital MarketNew York Stock Exchange, satisfactory evidence of which shall have been provided to the Representatives.
(jk) On the Effective Closing Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Securities Assignment Agreements, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider Letter, the Registration and Stockholder Rights Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement.
(kl) At least one Business Day prior to the Closing DateDate or settlement date (as applicable), the Sponsor Company shall have caused the applicable purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(lm) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(g5(ii) hereof shall have been issued as of the Closing DateDate or settlement date (as applicable), and no proceedings for that purpose shall have been instituted or shall have been threatened.
(mn) The several obligations On or before the date of this Agreement, the Representatives shall have received a certificate satisfying the beneficial ownership due diligence requirements of the Underwriters to purchase Option Securities hereunder are subject to Financial Crimes Enforcement Network from the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date;
(ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof;
(iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof;
(iv) a letter dated the Option Closing Date, Company in form and substance reasonably satisfactory to the Representatives, from KPMG substantially in the same form and substance along with such additional supporting documentation as the letter furnished to Representatives have requested in connection with the Underwriters pursuant to Section 6(e) hereof; provided that verification of the cutoff date shall not be more than two business days prior to such Option Closing Date; and
(v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securitiesforegoing certificate. If any of the conditions specified in this Section 6 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions, negative assurance letters opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled cancelled at, or at any time prior to, the Closing Date by the Representatives. 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 6 shall be delivered at the office of Ropes D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇4▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: D▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein, on the Closing DateDate or settlement date (as applicable).
Appears in 2 contracts
Sources: Underwriting Agreement (Star Peak Corp II), Underwriting Agreement (Star Peak Corp II)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any Option Closing Datesettlement date pursuant to Section 3 hereof, 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 to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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 Company shall have requested and caused Weil, Gotshal ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representatives Representative its opinions and negative assurance letter, each dated the Closing Date and addressed to the Representatives, Representative in a form reasonably and substance acceptable to the RepresentativesRepresentative.
(c) The Representatives Company shall have requested and caused ▇▇▇▇▇▇ and Calder, Cayman Islands counsel for the Company, to have furnished to the Representative its opinions dated the Closing Date and addressed to the Representative in form and substance acceptable to the Representative.
(d) The Representative shall have received from Ropes Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, each dated the Closing Date and addressed to the RepresentativesRepresentative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives Representative 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.
(de) The Company shall have furnished to the Representatives Representative a certificate of the Company, signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers signer of such certificate have has carefully examined the Registration Statement Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, as well as each road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(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 of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(ef) The Company shall have furnished to the Representative a certificate signed by the Secretary or Assistant Secretary of the Company, dated the Closing Date, certifying (i) that the Amended and Restated Memorandum and Articles of Association of the Company are true and complete, have not been modified and are in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all correspondence between the Company or its counsel and the Commission, and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(g) The Company shall have requested and caused KPMG Withum to have furnished to the RepresentativesRepresentative, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the RepresentativesRepresentative, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review an audit of the audited financial statements of the Company for the period from June November 29, 2020 2017 (date of inception) through July 24December 31, 20202017, provided that the cutoff date shall not be more than two business days Business Days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and;
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation; and
(iii) statements as to such other matters incident to the transaction contemplated hereby as the Representative may reasonably request. References to the Prospectus in this paragraph (eg) include any supplement thereto at the date of the letter.
(fh) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (eg) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) ), earnings, business or prospects properties of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the RepresentativesRepresentative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(g) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(hi) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(ij) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital MarketNew York Stock Exchange, satisfactory evidence of which shall have been provided to the RepresentativesRepresentative.
(jk) On the Effective Date, the The Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives Representative (i) executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement, the Services Agreement and the Insider Letters on the Closing Date and (ii) executed copies of the Founder’s Purchase Agreement and the Private Placement Warrants Purchase Agreement on the Effective Date.
(kl) At least one (1) Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(lm) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives Representative pursuant to Section 5(g5(ii) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date;
(ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof;
(iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and
(v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the RepresentativesRepresentative. 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 Ropes Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein, on the Closing Date.
Appears in 2 contracts
Sources: Underwriting Agreement (Leo Holdings Corp.), Underwriting Agreement (Leo Holdings Corp.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any Option Closing Datesettlement date pursuant to Section 3 hereof, 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 to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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 Company shall have requested and caused Weil, Gotshal ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representatives its opinions opinion and negative assurance letter, each letter dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(c) The Representatives shall have received from Ropes & ▇▇▇▇ Sidley Austin LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letter, each letter dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives 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 Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing DateDate or settlement date (as applicable), to the effect that the signers of such certificate have carefully examined the Registration Statement Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, as well as any Written Testing-the-Waters Communications and each road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the such Closing Date or settlement date (as applicable) with the same effect as if made on the Closing Date or settlement date (as applicable), and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the such Closing DateDate or settlement date (as applicable);
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued 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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Registration Statement, the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(e) The Company shall have furnished to the Representatives a certificate signed by the signed by the Chief Executive Officer of the Company, dated the Closing Date, certifying (i) that the Amended and Restated Certificate of Incorporation and bylaws of the Company are true and complete, have not been modified and are in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all written correspondence between the Company or its counsel and the Commission, and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(f) The Company shall have requested and caused KPMG ▇▇▇▇▇▇ to have furnished to the Representatives, at the Execution Time and at the Closing DateDate or settlement date (as applicable), comfort letters, dated respectively as of the Execution Time and as of the Closing DateDate or settlement date (as applicable), in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for included in the period from June 29Registration Statement, 2020 (date of inception) through July 24, 2020, Statutory Prospectus and Prospectus; provided that the cutoff date shall not be more than two business days Business Days prior to such Execution Time or Closing DateDate or settlement date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (ef) include any supplement thereto at the date of the letter.
(fg) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Registration Statement, the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, which is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(gh) Prior to the Closing DateDate or settlement date (as applicable), the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(hi) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(ij) The Securities shall be duly listed listed, subject to notice of issuance issuance, on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(jk) On the Effective Closing Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Securities Subscription Agreement, the Warrant Purchase Agreement, the Insider Letters Letter, the Administrative Services Agreement and the Registration Rights Agreement.
(kl) At least one Business Day prior to the Closing DateDate or settlement date (as applicable), the Sponsor Company shall have caused the applicable purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(lm) No order preventing or suspending the sale of the Units Securities in any jurisdiction designated by the Representatives pursuant to Section 5(g5(ii) hereof shall have been issued as of the Closing DateDate or settlement date (as applicable), and no proceedings for that purpose shall have been instituted or shall have been threatened.
(mn) The several obligations On or before the date of this Agreement, the Representatives shall have received a certificate satisfying the beneficial ownership due diligence requirements of the Underwriters to purchase Option Securities hereunder are subject to Financial Crimes Enforcement Network (“FinCEN”) from the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date;
(ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof;
(iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof;
(iv) a letter dated the Option Closing Date, Company in form and substance reasonably satisfactory to the Representatives, from KPMG substantially in the same form and substance along with such additional supporting documentation as the letter furnished to Representatives have requested in connection with the Underwriters pursuant to Section 6(e) hereof; provided that verification of the cutoff date shall not be more than two business days prior to such Option Closing Date; and
(v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securitiesforegoing certificate. 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, negative assurance letters opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled cancelled at, or at any time prior to, the Closing Date by the Representatives. 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 Ropes & ▇▇▇▇ in electronic format to Sidley Austin LLP, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇[●], unless otherwise indicated herein, on the Closing DateDate or settlement date (as applicable).
Appears in 2 contracts
Sources: Underwriting Agreement (Focus Impact Acquisition Corp.), Underwriting Agreement (Focus Impact Acquisition Corp.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any Option Closing Datesettlement date pursuant to Section 3 hereof, 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 to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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 Company shall have requested and caused WeilSkadden, Gotshal & Arps, Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP, U.S. counsel for the Company, to have furnished to the Representatives Representative its opinions and negative assurance letter, each dated the Closing Date and addressed to the Representatives, Representative in a the form reasonably acceptable to the Representativesattached as Exhibit A hereto.
(c) The Representatives Company shall have requested and caused M▇▇▇▇▇ and Calder, Cayman Islands counsel for the Company, to have furnished to the Representative its opinions dated the Closing Date and addressed to the Representative in the form attached as Exhibit B hereto.
(d) The Representative shall have received from Ropes D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇ LLP, U.S. counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, each dated the Closing Date and addressed to the RepresentativesRepresentative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives Representative 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.
(de) The Company shall have furnished to the Representatives Representative a certificate of the Company, signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(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 of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(ef) The Company shall have furnished to the Representatives a certificate signed by the Secretary or Assistant Secretary of the Company, dated the Closing Date, certifying (i) that the Amended and Restated Memorandum and Articles of Association of the Company are true and complete, have not been modified and are in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all correspondence between the Company or its counsel and the Commission, and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(g) The Company shall have requested and caused KPMG M▇▇▇▇▇ to have furnished to the RepresentativesRepresentative, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the RepresentativesRepresentative, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from June 29January 28, 2020 2015 (date of inception) through July 24to March 2, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable2015, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and;
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation; and
(iii) statements as to such other matters incident to the transaction contemplated hereby as the Representatives may reasonably request. References to the Prospectus in this paragraph (eg) include any supplement thereto at the date of the letter.
(fh) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (eg) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) ), earnings, business or prospects properties of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the RepresentativesRepresentative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(gi) Prior to the Closing Date, the The Company shall have furnished to the Representatives Representative a certificate of the Sponsor, signed by its managers and dated as of the Closing Date, certifying as to its constituent documents and resolutions relating to the authorization and performance of certain matters in connection with the Offering and as to the incumbency of such further information, certificates and documents as the Representatives may reasonably requestmanagers.
(hj) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(ik) The Securities shall be duly listed subject to notice of issuance on the Nasdaq NASDAQ Capital Market, satisfactory evidence of which shall have been provided to the RepresentativesRepresentative.
(jl) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Securities Assignment Agreement, the Warrant Subscription Agreement, the Escrow Agreement and each of the Insider Letters and the Registration Rights AgreementLetters.
(km) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the total purchase price for the Private Placement Warrants to be deposited delivered to the Company so that the Company can fund the portion of the gross proceeds of the Private Placement Warrants required under Section 3(b) into the Trust AccountAccount one Business Day prior to the Closing Date.
(ln) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives Representative pursuant to Section 5(g5(jj) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date;
(ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof;
(iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and
(v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the RepresentativesRepresentative. 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 Ropes D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇4▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein, on the Closing Date.
Appears in 2 contracts
Sources: Underwriting Agreement (GP Investments Acquisition Corp.), Underwriting Agreement (GP Investments Acquisition Corp.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Firm Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any Option Closing Datesettlement date pursuant to Section 4 hereof, 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 to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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 Company shall have requested and caused Weil, Gotshal ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representatives its opinions and negative assurance letter, each dated the Closing Date and any settlement date, as applicable, and addressed to the Representatives, in a customary form reasonably acceptable to the Representatives.
(c) The Company shall have requested and caused ▇▇▇▇▇▇ and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and any settlement date, as applicable, and addressed to the Representatives, in a customary form reasonably acceptable to the Representatives.
(d) The Representatives shall have received from Ropes ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, each dated the Closing Date and any settlement date, as applicable, and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related customary matters as the Representatives 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.
(de) The Company shall have furnished to the Representatives a certificate of the Company, signed by the its Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing DateDate and any settlement date, as applicable, to the effect that the signers of such certificate have carefully examined the Registration Statement Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and each “road show” as defined in Rule 433(h) of the Act used in connection with the Offering, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date such date with the same effect as if made on the Closing Date such date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Datesuch 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 of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(ef) The Company shall have requested and caused KPMG Withum to have furnished to the Representatives, at the Execution Time and at the Closing DateDate and any settlement date, as applicable, letters, dated respectively as of the Execution Time and as of the Closing DateDate and any settlement date, as applicable, in form and substance reasonably satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from June 29, 2020 (date of inception) through July 24, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(fg) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (ef) of this Section 6 7 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) ), the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(gh) Prior to the Closing Date, and any settlement date, as applicable, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(hi) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(ij) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(jk) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider Letter, the Registration and Shareholder Rights Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement.
(kl) At least one Business Day prior to the Closing DateDate or a settlement date, as applicable, the Sponsor Company shall have caused proceeds from the purchase price for sale of the Private Placement Warrants to be deposited into the Trust AccountAccount such that the cumulative amount deposited into the Trust Account as of such Closing Date or such settlement date, as applicable, shall equal the product of the number of Units issued in the Offering as of such Closing Date or such settlement date, as applicable, and the public offering price per Unit as set forth on the cover of the Prospectus.
(lm) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(g6(ii) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date;
(ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof;
(iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and
(v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. If any of the conditions specified in this Section 6 7 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions, negative assurance letters opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. 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 7 and, if applicable, the last sentence of Section 4(c), shall be delivered at the office of Ropes ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein, on the Closing DateDate or the applicable settlement date, as applicable.
Appears in 2 contracts
Sources: Underwriting Agreement (Poema Global Holdings Corp.), Underwriting Agreement (POEMA Global Holdings Corp.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any Option Closing Datesettlement date pursuant to Section 3 hereof, 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 to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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 Company shall have requested and caused Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representatives its opinions and negative assurance letter, each dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(c) The Company shall have requested and caused ▇▇▇▇▇▇ and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(d) The Representatives shall have received from Ropes ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, each dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives 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.
(de) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement 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 the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(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 of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(ef) The Company shall have requested and caused KPMG ▇▇▇▇▇▇ to have furnished to the Representatives, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from June 29February 11, 2020 (date of inception) through July 24March 12, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (ef) include any supplement thereto at the date of the letter.
(fg) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (ef) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(gh) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(hi) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(ij) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital MarketNew York Stock Exchange, satisfactory evidence of which shall have been provided to the Representatives.
(jk) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Forward Purchase Agreement, the Insider Letters, the Registration Rights Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement.
(kl) At least one Business Day prior to the Closing Date, the Sponsor Trasimene Trebia, LP and BGPT Trebia LP shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(lm) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(g5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date;
(ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof;
(iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and
(v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. 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 Ropes ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein, on the Closing Date.
Appears in 2 contracts
Sources: Underwriting Agreement (Trebia Acquisition Corp.), Underwriting Agreement (Trebia Acquisition Corp.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any Option Closing Datesettlement date pursuant to Section 3 hereof, 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 to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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 Company shall have requested and caused Weil, Gotshal ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, U.S. counsel for the Company, to have furnished to the Representatives its opinions and negative assurance letter, each dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(c) The Company shall have requested and caused Walkers, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, in a form satisfactory to the Representatives.
(d) The Representatives shall have received from Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, each dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives 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.
(de) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement 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 the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(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 of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(ef) The Company shall have furnished to the Representatives a certificate signed by the Secretary or Assistant Secretary of the Company, dated the Closing Date, certifying (i) that the Amended and Restated Memorandum and Articles of Association of the Company are true and complete, have not been modified and are in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all correspondence between the Company or its counsel and the Commission, and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(g) The Company shall have requested and caused KPMG Withum to have furnished to the Representatives, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from June 29February 9, 2020 2021 (date of inception) through July 24February 10, 20202021, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (eg) include any supplement thereto at the date of the letterletters.
(fh) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(gi) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(hj) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(ik) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(jl) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Trust Agreement, the Founder’s Purchase Agreement, the Warrant Sponsor Subscription Agreement, the Securities Assignment Agreements, the Insider Letters, the Registration Rights Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement.
(km) At least one Business Day prior to the Closing DateDate or a settlement date, as applicable, the Sponsor Company shall have caused proceeds from the purchase price for sale of the Private Placement Warrants Shares to be deposited into the Trust AccountAccount such that the cumulative amount deposited into the Trust Account as of such Closing Date or such settlement date, as applicable, shall equal the product of the number of Ordinary Shares issued in the Offering as of such Closing Date or such settlement date, as applicable, and the public offering price per Ordinary Share as set forth on the cover of the Prospectus.
(ln) No order preventing or suspending the sale of the Units Ordinary Shares in any jurisdiction designated by the Representatives pursuant to Section 5(g) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date;
(ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof;
(iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and
(v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. 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 Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein, on the Closing Date.
Appears in 2 contracts
Sources: Underwriting Agreement (Vector Acquisition Corp IV), Underwriting Agreement (Vector Acquisition Corp III)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Firm Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any Option Closing Datesettlement date pursuant to Section 4 hereof, 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 to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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 Company shall have requested and caused Weil, Gotshal ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representatives its opinions and negative assurance letter, each dated the Closing Date and any settlement date, as applicable, and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(c) The Company shall have requested and caused ▇▇▇▇▇▇ and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and any settlement date, as applicable, and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(d) The Representatives shall have received from Ropes ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, each dated the Closing Date and any settlement date, as applicable, and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives 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.
(de) The Company shall have furnished to the Representatives a certificate of the Company, signed by the its Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing DateDate and any settlement date, as applicable, to the effect that the signers of such certificate have carefully examined the Registration Statement Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and each “road show” as defined in Rule 433(h) of the Act used in connection with the Offering, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date such date with the same effect as if made on the Closing Date such date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Datesuch 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 of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(ef) The Company shall have requested and caused KPMG Withum to have furnished to the Representatives, at the Execution Time and at the Closing DateDate and any settlement date, as applicable, letters, dated respectively as of the Execution Time and as of the Closing DateDate and any settlement date, as applicable, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from June 29, 2020 (date of inception) through July 24, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(fg) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (ef) of this Section 6 7 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(gh) Prior to the Closing Date, and any settlement date, as applicable, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(hi) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(ij) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital MarketNew York Stock Exchange, satisfactory evidence of which shall have been provided to the Representatives.
(jk) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider Letter, the Registration and Shareholder Rights Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement.
(kl) At least one Business Day prior to the Closing DateDate or a settlement date, as applicable, the Sponsor Company shall have caused proceeds from the purchase price for sale of the Private Placement Warrants to be deposited into the Trust AccountAccount such that the cumulative amount deposited into the Trust Account as of such Closing Date or such settlement date, as applicable, shall equal the product of the number of Units issued in the Offering as of such Closing Date or such settlement date, as applicable, and the public offering price per Unit as set forth on the cover of the Prospectus.
(lm) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(g6(ii) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date;
(ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof;
(iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and
(v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. If any of the conditions specified in this Section 6 7 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions, negative assurance letters opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. 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 7 and, if applicable, the last sentence of Section 4(c), shall be delivered at the office of Ropes ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇, ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein, on the Closing DateDate or the applicable settlement date, as applicable.
Appears in 2 contracts
Sources: Underwriting Agreement (AEA-Bridges Impact Corp.), Underwriting Agreement (AEA-Bridges Impact Corp.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any Option Closing Datesettlement date pursuant to Section 3 hereof, 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 to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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 Company shall have requested and caused Weil, Gotshal & ▇▇▇▇▇▇ LLPLedgewood PC, counsel for the Company, to have furnished to the Representatives its opinions and negative assurance letter, each letter dated the Closing Date and any settlement date and addressed to the Representatives, Representatives in a form reasonably and substance acceptable to the Representatives.
(c) The Company shall have requested and caused ▇▇▇▇▇▇ and ▇▇▇▇▇▇, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and any settlement date and addressed to the Representatives in form and substance acceptable to the Representatives.
(d) The Representatives shall have received from Ropes ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or its opinions and negative assurance letter, each dated the Closing Date and any settlement date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives 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.
(de) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer and the principal financial or accounting officer Chief Financial Officer of the Company, dated the Closing DateDate and any settlement date, to the effect that the signers each signer of such certificate have has carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, as well as each road show used in connection with the Offering, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date such date with the same effect as if made on the Closing Date such date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Datesuch 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 of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(ef) The Company shall have furnished to the Representatives a certificate signed by the Secretary of the Company, dated the Closing Date and any settlement date, certifying (i) that the Charter is true and complete, has not been modified and is in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all written correspondence between the Company or its counsel and the Commission, and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(g) The Company shall have requested and caused KPMG Withum to have furnished to the Representatives, at the Execution Time and at the Closing Date, and any settlement date, letters, dated respectively as of the Execution Time and as of the Closing Date, and any settlement date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and thereunder, that they have performed a review of the audited financial statements of the Company for the period from June 29, 2020 (date of inception) through July 24, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have , and reporting on the other procedures performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records by them in respect of the Company) set forth financial information in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e(g) include any supplement thereto at the date of the applicable letter.
(fh) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e(g) of this Section Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) ), earnings, business or prospects properties of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i(i) or (ii(ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(g) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(hi) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(ij) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(jk) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Registration Rights Agreement, the Warrant Units Subscription Agreement, the Insider Letters Letter, the Millennium Purchase Agreement and the Registration Rights Services Agreement.
(kl) At least one (1) Business Day prior to the Closing Date, the Sponsor shall have caused an agreed amount of proceeds from the purchase price for sale of the Private Placement Warrants Units to be deposited into the Trust Account.
(lm) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(gSection 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(mn) The several obligations of the Underwriters to purchase Option Securities hereunder are subject Prior to the delivery Closing Date and any settlement date, the Company shall have furnished to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date;
(ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof;
(iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and
(v) such further information, certificates and documents as the Representatives may reasonably request with respect to the issuance of such Option Securitiesrequest. If any of the conditions specified in this Section Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions, negative assurance letters opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date or any applicable settlement date by the Representatives. 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 Section 6 shall be delivered at the office of Ropes ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇., unless otherwise indicated herein, on the Closing DateDate and any applicable settlement date.
Appears in 2 contracts
Sources: Underwriting Agreement (FTAC Hera Acquisition Corp.), Underwriting Agreement (FTAC Hera Acquisition Corp.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any Option Closing Datesettlement date pursuant to Section 3 hereof, 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 to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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 Company shall have requested and caused Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representatives its opinions and negative assurance letter, each dated the Closing Date or the settlement date, as the case may be, and addressed to the Representatives, in a form reasonably acceptable satisfactory to the Representatives.
(c) The Representatives shall have received from Ropes Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, each dated the Closing Date or the settlement date, as the case may be, and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives 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 Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing DateDate or the settlement date, as the case may be, to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date such date with the same effect as if made on the Closing Date such date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Datesuch 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 of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(e) The Company shall have requested and caused KPMG Withum to have furnished to the Representatives, at the Execution Time and at the Closing DateDate or the settlement date, as the case may be, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from June 29January 24, 2020 (date of inception) through July 24[●], 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(g) Prior to the Closing DateDate or the settlement date, as the case may be, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(h) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(i) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, New York Stock Exchange satisfactory evidence of which shall have been provided to the Representatives.
(j) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Subscription Agreement, the Warrant Purchase Agreement, the Insider Letters and Letter, the Registration Rights Agreement and the Services Agreement.
(k) At least one Business Day prior to the Closing DateDate or the settlement date, as the case may be, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be wired to the Company and the Company shall direct the trustee to deposit such funds into the Trust Account and to hold such funds in the Trust Account such that the cumulative amount deposited into the Trust AccountAccount as of such Closing Date or settlement date shall equal the product of the number of Units sold in the Offering as of such Closing Date or settlement date and the public offering price per Unit as set forth on the cover of the Prospectus.
(l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(g5(ii) hereof shall have been issued as of the Closing DateDate or the settlement date, as the case may be, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date;
(ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof;
(iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and
(v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. 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 Ropes Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein, on the Closing Date.
Appears in 2 contracts
Sources: Underwriting Agreement (Fortress Value Acquisition Corp.), Underwriting Agreement (Fortress Value Acquisition Corp.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any Option Closing Datesettlement date pursuant to Section 3 hereof, 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 to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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 Company shall have requested and caused Weil, Gotshal Winston & ▇S▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representatives its opinions and negative assurance letter, each dated the Closing Date and addressed to the Representatives, Representatives in a form reasonably and substance acceptable to the Representatives.
(c) The Company shall have requested and caused M▇▇▇▇▇ and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives in form and substance acceptable to the Representatives.
(d) The Representatives shall have received from Ropes Skadden, Arps, Slate, M▇▇▇▇▇▇ & ▇F▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, each dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives 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.
(de) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer and the principal financial or accounting officer and the secretary of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, as well as each road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(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 of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(ef) The Company shall have furnished to the Representatives a certificate signed by the Secretary or Assistant Secretary of the Company, dated the Closing Date, certifying (i) that the Amended and Restated Memorandum and Articles of Association of the Company are true and complete, have not been modified and are in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all correspondence between the Company or its counsel and the Commission, and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(g) The Company shall have requested and caused KPMG Withum to have furnished to the Representatives, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from June 29February 26, 2020 2016 (date of inception) through July 24March 2, 20202016, provided that the cutoff date shall not be more than two business days Business Days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (eg) include any supplement thereto at the date of the letter.
(fh) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (eg) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) ), earnings, business or prospects properties of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(g) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(hi) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(ij) The Securities shall be duly listed subject to notice of issuance on the Nasdaq NASDAQ Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(jk) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Forward Purchase Agreements, the Registration Rights Agreement, the Services Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights AgreementLetters.
(kl) At least one (1) Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(lm) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(g5(ii) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date;
(ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof;
(iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and
(v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. 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 Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein, on the Closing Date.the
Appears in 2 contracts
Sources: Underwriting Agreement (CF Corp), Underwriting Agreement (CF Corp)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any Option Closing Datesettlement date pursuant to Section 3 hereof, 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 to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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 Company shall have requested and caused Weil, Gotshal ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representatives Representative its opinions and (including negative assurance letter, each statements) dated the Closing Date and addressed to the Representatives, Representative in a form reasonably and substance acceptable to the RepresentativesRepresentative.
(c) The Representatives Company shall have requested and caused ▇▇▇▇▇▇ and Calder, Cayman Islands counsel for the Company, to have furnished to the Representative its opinions dated the Closing Date and addressed to the Representative in form and substance acceptable to the Representative.
(d) The Representative shall have received from Ropes ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letter, each dated the Closing Date and addressed to the RepresentativesRepresentative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives Representative 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.
(de) The Company shall have furnished to the Representatives Representative a certificate of the Company, signed by the Chief Executive Officer and the principal financial or accounting officer Chief Financial Officer of the Company, dated the Closing Date, to the effect that the signers signer of such certificate have has carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, as well as each road show used in connection with the Offering, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(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 of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(ef) The Company shall have furnished to the Representative a certificate signed by the Secretary of the Company, dated the Closing Date, certifying (i) that the Charter is true and complete, has not been modified and is in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all correspondence between the Company or its counsel and the Commission, and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(g) The Company shall have requested and caused KPMG ▇▇▇▇▇▇ to have furnished to the RepresentativesRepresentative, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the RepresentativesRepresentative, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from June 29December 18, 2020 2019 (date of inception) through July 24December 31, 2020, provided that the cutoff date shall not be more than two business days Business Days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e(g) include any supplement thereto at the date of the letter.
(fh) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e(g) of this Section 6 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) ), earnings, business or prospects properties of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i(i) or (ii(ii) above, is, in the sole judgment of the RepresentativesRepresentative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(g) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(hi) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(ij) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital MarketNew York Stock Exchange, satisfactory evidence of which shall have been provided to the RepresentativesRepresentative.
(jk) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives Representative executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and Founder’s Purchase Agreement, the Registration Rights Agreement, the Services Agreement, the Warrant Subscription Agreement and the Insider Letters.
(kl) At least one (1) Business Day prior to the Closing Date, the Sponsor shall have caused certain proceeds from the purchase price for sale of the Private Placement Warrants to be deposited into the Trust Account.
(lm) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives Representative pursuant to Section 5(g5(ii) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date;
(ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof;
(iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and
(v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. If any of the conditions specified in this Section 6 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions, negative assurance letters opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the RepresentativesRepresentative. 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 6 shall be delivered at the office of Ropes ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein, on the Closing Date.
Appears in 2 contracts
Sources: Underwriting Agreement (Sustainable Opportunities Acquisition Corp.), Underwriting Agreement (Sustainable Opportunities Acquisition Corp.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Firm Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any Option Closing Datesettlement date pursuant to Section 4 hereof, 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 to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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 Company shall have requested and caused Weil, Gotshal & ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, LLP, counsel for the Company, to have furnished to the Representatives its opinions and negative assurance letter, each dated the Closing Date and any settlement date, as applicable, and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(c) The Company shall have requested and caused Ogier, British Virgin Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and any settlement date, as applicable, and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(d) The Representatives shall have received from Ropes Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, each dated the Closing Date and any settlement date, as applicable, and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives 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.
(de) The Company shall have furnished to the Representatives a certificate of the Company, signed by the its Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing DateDate and any settlement date, as applicable, to the effect that the signers of such certificate have carefully examined the Registration Statement Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and each “road show” as defined in Rule 433(h) of the Act used in connection with the Offering, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date such date with the same effect as if made on the Closing Date such date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Datesuch 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 of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(ef) The Company shall have requested and caused KPMG Withum to have furnished to the Representatives, at the Execution Time and at the Closing DateDate and any settlement date, as applicable, letters, dated respectively as of the Execution Time and as of the Closing DateDate and any settlement date, as applicable, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from June 29, 2020 (date of inception) through July 24, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(fg) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (ef) of this Section 6 7 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(gh) Prior to the Closing Date, and any settlement date, as applicable, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(hi) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(ij) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(jk) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Forward Purchase Agreement, the Insider Letter, the Registration Rights Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement.
(kl) At least one Business Day prior to the Closing DateDate or a settlement date, as applicable, the Sponsor Company shall have caused proceeds from the purchase price for sale of the Private Placement Warrants to be deposited into the Trust AccountAccount such that the cumulative amount deposited into the Trust Account as of such Closing Date or such settlement date, as applicable, shall equal the product of the number of Units issued in the Offering as of such Closing Date or such settlement date, as applicable, and the public offering price per Unit as set forth on the cover of the Prospectus.
(lm) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(g6(ii) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date;
(ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof;
(iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and
(v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. If any of the conditions specified in this Section 6 7 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions, negative assurance letters opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. 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 7 and, if applicable, the last sentence of Section 4(c), shall be delivered at the office of Ropes Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, unless otherwise indicated herein, on the Closing DateDate or the applicable settlement date, as applicable.
Appears in 2 contracts
Sources: Underwriting Agreement (Kismet Acquisition One Corp), Underwriting Agreement (Kismet Acquisition One Corp)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any Option Closing Datesettlement date pursuant to Section 3 hereof, 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 to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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 Company shall have requested and caused Ellenoff ▇▇▇▇▇▇▇▇ & Schole LLP, counsel for the Company, to have furnished to the Representative its opinions dated the Closing Date and addressed to the Representative in form and substance satisfactory to the Representative.
(c) The Company shall have requested and caused Ogier, British Virgin Islands counsel for the Company, to have furnished to the Representative its opinions dated the Closing Date and addressed to the Representative in form and substance satisfactory to the Representative.
(d) The Representative shall have received from Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the CompanyUnderwriters, to have furnished to the Representatives its opinions and negative assurance lettersuch opinion or opinions, each dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(c) The Representatives shall have received from Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letter, each dated the Closing Date and addressed to the RepresentativesRepresentative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives Representative 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.
(de) The Company shall have furnished to the Representatives Representative a certificate of the Company, signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, Date to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(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 of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(ef) The Company shall have furnished to the Representatives a certificate signed by the Chief Financial Officer of the Company, dated the Closing Date, certifying (i) that the Amended and Restated Memorandum and Articles of Association of the Company are true and complete, have not been modified and are in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all correspondence between the Company or its counsel and the Commission, and (iv) as to the incumbency of the officers of the Company, and such other matters as the Representatives shall reasonably request. The documents referred to in such certificate shall be attached to such certificate.
(g) The Company shall have requested and caused KPMG ▇▇▇▇▇▇ to have furnished to the RepresentativesRepresentative, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the RepresentativesRepresentative, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from June 29January 14, 2020 2015 (date of inception) through July 24to January 20, 20202015, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and;
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation; and
(iii) statements as to such other matters incident to the transaction contemplated hereby as the Representatives may reasonably request. References to the Prospectus in this paragraph (eg) include any supplement thereto at the date of the letter.
(fh) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (eg) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the financial condition, earnings, business, management, properties, assets, rights, operations, condition (financial business or otherwise) or prospects properties of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the RepresentativesRepresentative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(gi) Prior to the Closing Date, the Company shall have furnished to the Representatives Representative such further information, certificates and documents as the Representatives Representative may reasonably request.
(hj) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(ik) The Securities shall be duly listed subject to notice of issuance on the Nasdaq NASDAQ Capital Market, satisfactory evidence of which shall have been provided to the RepresentativesRepresentative.
(jl) On the Effective Closing Date, the Company shall have delivered to the Representatives Representative executed copies of the Securities Assignment Trust Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies each of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights AgreementLetters.
(km) At least one Business Day prior to the Closing Date, the Sponsor shall have caused $1,250,000 of the purchase price for the Private Placement Warrants Shares to be deposited into funded to the Company and the remainder to be funded to the Trust Account.
(ln) No order preventing or suspending the sale of the Units Securities in any jurisdiction designated by the Representatives Representative pursuant to Section 5(g5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date;
(ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof;
(iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and
(v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the RepresentativesRepresentative. 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 Ropes Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein, on the Closing Date.
Appears in 2 contracts
Sources: Underwriting Agreement (Atlantic Alliance Partnership Corp.), Underwriting Agreement (Atlantic Alliance Partnership Corp.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the any Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Manager contained herein as of the Execution Time, the Closing Date and any Option Closing Datesettlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company and the Manager made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other 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 Company At the Closing Date, the Representatives shall have requested received the favorable opinion, dated as of the Closing Date, of each of Sidley Austin LLP and caused Weil, Gotshal ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the CompanyCompany and the Manager, in form and substance reasonably satisfactory to counsel for the Underwriters, together with signed or reproduced copies of such letter for each of the other Underwriters substantially in the form set forth in Exhibit A and Exhibit B hereto, respectively, and to such further effect as counsel to the Underwriters may reasonably request. In rendering each such opinion, as applicable, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of New York or the Federal laws of the United States, to have furnished the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the Representatives its opinions extent they deem proper, on certificates of responsible officers of the Company and negative assurance letter, each dated public officials. References to the Final Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the RepresentativesDate.
(c) The Representatives shall have received from Ropes Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, each dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory ProspectusDisclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives 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 Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary ProspectusStatement, the Disclosure Package, the Final Prospectus and any amendment supplements or supplement amendments thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(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 of the most recent financial statements included or incorporated by reference in the Statutory Prospectus Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effectmaterial adverse effect on the 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 Statutory Prospectus Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(e) The Manager shall have furnished to the Representatives a certificate of the Manager, signed by the President of the Manager, dated the Closing Date, to the effect that the signer of such certificate has carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that the representations and warranties of the Manager in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date.
(f) The Company shall have requested and caused KPMG Deloitte & Touche LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, lettersletters (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements and certain financial information of the Company for the period from June 29, 2020 (date of inception) through July 24, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time and LNR contained or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included incorporated by reference in the Registration Statement, the Statutory Prospectus Disclosure Package and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Final Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(fg) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus ) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (ef) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) ), earnings, business or prospects properties of the CompanyCompany 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 Statutory Prospectus Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(gh) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(hi) FINRA shall not have raised any objection with respect Prior to the fairness or reasonableness Closing Date, the shares of Common Stock issuable upon conversion of the underwriting or other arrangements Securities shall have been listed and admitted and authorized for trading on the NYSE, subject only to notice of the transactions contemplated herebyissuance.
(j) At the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit C hereto from (i) The Securities shall be duly listed subject to notice each officer and director of issuance on the Nasdaq Capital MarketCompany (other than ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇), satisfactory evidence (ii) each officer of which shall have been provided the Manager, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇ ▇▇▇▇, and (iii) SPT Investment, LLC, in each case addressed to the Representatives.
(jk) On At the Effective DateExecution Time, the Company shall have delivered furnished to the Representatives executed copies a letter substantially in the form of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement.
(k) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(g) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following:
Exhibit D hereto from (i) a certificate signed by the Chief Executive Officer Manager and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date;
(ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof;
(iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof;
(iv) a letter dated the Option Closing Date▇▇, in form and substance satisfactory each case addressed to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and
(v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. 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 Ropes Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇Four Times Square, ▇▇▇ ▇▇▇▇New York, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇New York, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein10036-6522, on the Closing Date.
Appears in 2 contracts
Sources: Underwriting Agreement (Starwood Property Trust, Inc.), Underwriting Agreement (Starwood Property Trust, Inc.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any Option Closing Datesettlement date pursuant to Section 3 hereof, 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 to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, 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) hereto and any other 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 Company Representatives shall have requested and caused Weil, Gotshal received from ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ ▇▇▇▇, LLP, counsel for the Company, to have furnished to the Representatives its opinions and negative assurance lettersuch opinion, each dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representativeseffect set forth on Exhibit B hereto and of ▇▇▇▇▇▇ ▇▇▇▇▇▇ Morandi to the effect set forth on Exhibit C hereto.
(c) The Representatives shall have received from Ropes ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇ LLP▇▇▇▇▇, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, each dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related such matters as the Representatives 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 Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement 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 the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(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 of the most recent financial statements included in the Statutory Prospectus Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effectmaterial adverse effect on the condition (financial or other), business, properties or results of operation of the Company and the 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 Statutory Prospectus Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(e) The Company Representatives shall have requested and caused KPMG to have furnished to the Representativesreceived (i) from PricewaterhouseCoopers LLP, at the Execution Time and at the Closing Date, letters“comfort” letters (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are a an independent registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange applicable rules and regulations adopted by the Commission and the Public Company Accounting Oversight Board (United States) (PCAOB) substantially in the form of Exhibit D hereto and (ii) from BDO ▇▇▇▇ ▇▇▇▇▇▇▇ LLP, at the Execution Time and at the Closing Date, “comfort” letters (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are an independent registered accounting firm with respect to IXEurope within the meaning of the Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from June 29, 2020 (date of inception) through July 24, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included PCAOB substantially in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letterExhibit E hereto.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus ) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) ), earnings, business or prospects properties of the CompanyCompany 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 Statutory Prospectus Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(g) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(h) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(hi) FINRA shall not have raised any objection with respect At or prior to the fairness or reasonableness Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each Section 16 officer and director of the underwriting or other arrangements of the transactions contemplated hereby.
(i) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided Company addressed to the Representatives.
(ji) On the Effective Date, the Company shall have delivered Subsequent to the Representatives executed copies execution and delivery of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription this Agreement and the Administrative Services Agreement. On concurrently with or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement.
(k) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(g) hereof Concurrent Debt Offering shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date;
(ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof;
(iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and
(v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securitiescompleted. 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, negative assurance letters opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. 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 Ropes ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇ LLP▇▇▇▇▇, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein, on the Closing Date.
Appears in 2 contracts
Sources: Underwriting Agreement (Equinix Inc), Underwriting Agreement (Equinix Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any Option Closing Date, 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 to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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 Company shall have requested and caused Weil, Gotshal & G▇▇▇▇▇▇ Procter LLP, counsel for the Company, to have furnished to the Representatives its opinions and negative assurance letter, each dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(c) The Company shall have requested and caused Campbells, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions, dated the Closing Date and any settlement date, as applicable, and addressed to the Representatives, in form and substance reasonably acceptable to the Representatives.
(d) The Representatives shall have received from Ropes D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letter, each dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives 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.
(de) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement 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 the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(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 of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(ef) The Company shall have requested and caused KPMG Withum to have furnished to the Representatives, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from June 29August 18, 2020 (date of inception) through July 24August 19, 2020, provided provided, however, that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e(f) include any supplement thereto at the date of the letter.
(fg) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e(f) of this Section 6 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i(i) or (ii(ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(g) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(h) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(i) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital MarketNew York Stock Exchange, satisfactory evidence of which shall have been provided to the Representatives.
(j) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement.
(k) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(g5(g) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d6(e) hereof remains true and correct as of such Option Closing Date;
(ii) opinions and negative assurance letter of Weil, Gotshal & G▇▇▇▇▇▇ Procter LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b6(b) hereof;
(iii) opinions of Campbells, Cayman Islands counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof;
(iv) opinions and negative assurance letter of Ropes D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c6(d) hereof;; and
(ivv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG Withum substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e6(f) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and
(v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. If any of the conditions specified in this Section 6 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions, negative assurance letters and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. 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 6 shall be delivered at the office of Ropes D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇4▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: D▇▇▇▇ ▇. ▇▇▇▇▇▇, unless otherwise indicated herein, on the Closing Date.
Appears in 2 contracts
Sources: Underwriting Agreement (Vy Global Growth), Underwriting Agreement (Vy Global Growth)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any Option Closing Datesettlement date pursuant to Section 3 hereof, 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 to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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 Company shall have requested and caused Weil, Gotshal Ropes & ▇▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representatives Representative its opinions opinion and negative assurance letter, each letter dated the Closing Date or settlement date (as applicable) and addressed to the RepresentativesRepresentative, in a form reasonably acceptable to the RepresentativesRepresentative.
(c) The Representatives Representative shall have received from Ropes ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letter, each letter dated the Closing Date or settlement date (as applicable) and addressed to the RepresentativesRepresentative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives Representative 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 Company shall have furnished to the Representatives Representative a certificate of the Company, signed by the Chief Executive Officer and the principal financial or accounting another executive officer of the Company, dated the Closing DateDate or settlement date (as applicable), to the effect that the signers of such certificate have carefully examined the Registration Statement Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, as well as each road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the such Closing Date or settlement date (as applicable) with the same effect as if made on the Closing Date or settlement date (as applicable), and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the such Closing DateDate or settlement date (as applicable);
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued 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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(e) The Company shall have furnished to the Representative a certificate signed by the signed by the Chief Executive Officer and another executive officer of the Company, dated the Closing Date, certifying (i) that the Amended and Restated Certificate of Incorporation and bylaws of the Company are true and complete, have not been modified and are in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all written correspondence between the Company or its counsel and the Commission, and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(f) The Company shall have requested and caused KPMG ▇▇▇▇▇▇ to have furnished to the RepresentativesRepresentative, at the Execution Time and at the Closing DateDate or settlement date (as applicable), comfort letters, dated respectively as of the Execution Time and as of the Closing DateDate or settlement date (as applicable), in form and substance satisfactory to the RepresentativesRepresentative, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for included in the period from June 29Registration Statement, 2020 (date of inception) through July 24, 2020, Statutory Prospectus and Prospectus; provided that the cutoff date shall not be more than two business days Business Days prior to such Execution Time or Closing DateDate or settlement date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (ef) include any supplement thereto at the date of the letter.
(fg) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, which is, in the sole judgment of the RepresentativesRepresentative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(gh) Prior to the Closing DateDate or settlement date (as applicable), the Company shall have furnished to the Representatives Representative such further information, certificates and documents as the Representatives Representative may reasonably request.
(hi) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(ij) The Securities shall be duly listed listed, subject to notice of issuance issuance, on the Nasdaq Capital MarketNYSE, satisfactory evidence of which shall have been provided to the RepresentativesRepresentative.
(jk) On the Effective Closing Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives Representative executed copies of the Trust Agreement, the Warrant Agreement, the Securities Subscription Agreement, the Warrant Purchase Agreement, the Insider Letters Letter and the Registration Rights Agreement.
(kl) At least one Business Day prior to the Closing DateDate or settlement date (as applicable), the Sponsor Company shall have caused the applicable purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(lm) No order preventing or suspending the sale of the Units Securities in any jurisdiction designated by the Representatives Representative pursuant to Section 5(g5(ii) hereof shall have been issued as of the Closing DateDate or settlement date (as applicable), and no proceedings for that purpose shall have been instituted or shall have been threatened.
(mn) The several obligations On or before the date of this Agreement, the Representative shall have received a certificate satisfying the beneficial ownership due diligence requirements of the Underwriters to purchase Option Securities hereunder are subject to Financial Crimes Enforcement Network (“FinCEN”) from the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date;
(ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof;
(iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof;
(iv) a letter dated the Option Closing Date, Company in form and substance reasonably satisfactory to the RepresentativesRepresentative, from KPMG substantially in the same form and substance along with such additional supporting documentation as the letter furnished to Representative has requested in connection with the Underwriters pursuant to Section 6(e) hereof; provided that verification of the cutoff date shall not be more than two business days prior to such Option Closing Date; and
(v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securitiesforegoing certificate. 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, negative assurance letters opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled cancelled at, or at any time prior to, the Closing Date by the RepresentativesRepresentative. 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 Ropes in electronic format to ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇▇▇ ▇Attention: ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein, on the Closing DateDate or settlement date (as applicable).
Appears in 2 contracts
Sources: Underwriting Agreement (KKR Acquisition Holdings I Corp.), Underwriting Agreement (KKR Acquisition Holdings I Corp.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Firm Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any Option Closing Datesettlement date pursuant to Section 4 hereof, 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 to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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 Company shall have requested and caused Weil, Gotshal ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representatives its opinions and negative assurance letter, each dated the Closing Date and any settlement date, as applicable, and addressed to the Representatives, in a customary form reasonably acceptable to the Representatives.
(c) The Company shall have requested and caused ▇▇▇▇▇▇ and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and any settlement date, as applicable, and addressed to the Representatives, in a customary form reasonably acceptable to the Representatives.
(d) The Representatives shall have received from Ropes ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, each dated the Closing Date and any settlement date, as applicable, and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related customary matters as the Representatives 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 Company shall have furnished to the Representatives a certificate of the Company, signed by the its Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing DateDate and any settlement date, as applicable, to the effect that the signers of such certificate have carefully examined the Registration Statement Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and each “road show” as defined in Rule 433(h) of the Act used in connection with the Offering, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date such date with the same effect as if made on the Closing Date such date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Datesuch 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 of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(ef) The Company shall have requested and caused KPMG ▇▇▇▇▇▇ to have furnished to the Representatives, at the Execution Time and at the Closing DateDate and any settlement date, as applicable, letters, dated respectively as of the Execution Time and as of the Closing DateDate and any settlement date, as applicable, in form and substance reasonably satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from June 29, 2020 (date of inception) through July 24, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(fg) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (ef) of this Section 6 7 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(gh) Prior to the Closing Date, and any settlement date, as applicable, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(hi) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(ij) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital MarketNew York Stock Exchange, satisfactory evidence of which shall have been provided to the Representatives.
(jk) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Trust Agreement, the Forward Purchase Agreements, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider Letter, the Registration and Shareholder Rights Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement.
(kl) At least one Business Day prior to the Closing DateDate or a settlement date, as applicable, the Sponsor Company shall have caused proceeds from the purchase price for sale of the Private Placement Warrants to be deposited into the Trust AccountAccount such that the cumulative amount deposited into the Trust Account as of such Closing Date or such settlement date, as applicable, shall equal the product of the number of Units issued in the Offering as of such Closing Date or such settlement date, as applicable, and the public offering price per Unit as set forth on the cover of the Prospectus.
(lm) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(g6(ii) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date;
(ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof;
(iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and
(v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. If any of the conditions specified in this Section 6 7 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions, negative assurance letters opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. 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 7 and, if applicable, the last sentence of Section 4(c), shall be delivered at the office of Ropes ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein, on the Closing DateDate or the applicable settlement date, as applicable.
Appears in 2 contracts
Sources: Underwriting Agreement (Bluescape Opportunities Acquisition Corp.), Underwriting Agreement (Bluescape Opportunities Acquisition Corp.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any Option Closing Datesettlement date pursuant to Section 3 hereof, 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 to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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 Company shall have requested and caused Weil, Gotshal & ▇▇▇▇▇▇ Lovells US LLP, counsel for the Company, to have furnished to the Representatives its opinions their opinion and negative assurance letter, each dated the Closing Date and addressed to the Representatives, substantially in a the form reasonably acceptable agreed by such counsel and the Underwriters.
(i) The Company shall have requested and caused ▇▇▇▇▇▇ Hall & ▇▇▇▇▇▇▇ LLP, intellectual property counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, substantially in the form agreed by such counsel and the Underwriters.
(cii) The Company shall have requested and caused Fish & ▇▇▇▇▇▇▇▇▇▇ P.C., intellectual property counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, substantially in the form agreed by such counsel and the Underwriters.
(d) The Representatives shall have received from Ropes ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, each dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory ProspectusDisclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representatives 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.
(de) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer principal executive officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined reviewed the Registration Statement each Preliminary ProspectusStatement, the Disclosure Package, the Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(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 of the most recent financial statements included in the Statutory Prospectus Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(ef) The Company shall have requested and caused KPMG Ernst & Young LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from June 29, 2020 (date of inception) through July 24, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included substantially in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply form as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.Exhibit C.
(fg) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus ) and the Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (ef) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) ), earnings, business or prospects properties of the CompanyCompany and the Subsidiary 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 Statutory Prospectus Disclosure Package and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(gh) Prior to the Closing Date, the Company shall have furnished to the Representatives such further customary information, certificates and documents as the Representatives may reasonably request.
(h) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(i) The Securities shall be duly have been listed subject to notice of issuance and admitted and authorized for trading on the Nasdaq Capital Global Market, and satisfactory evidence of which such actions shall have been provided to the Representatives.
(j) On At the Effective DateExecution Time, the Company shall have delivered furnished to the Representatives executed copies a letter substantially in the form of Exhibit A hereto from each officer and director of the Securities Assignment Agreement, Company and each holder of capital stock of the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or Company prior to the Closing Date, date hereof (other than employees of the Company will deliver holding, in aggregate, less than 1% of the outstanding capital stock of the Company) addressed to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement.
(k) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(g) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date;
(ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof;
(iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and
(v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. 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 Ropes ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇., ▇▇▇ ▇▇▇▇Menlo Park, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated hereinCA 94025, on the Closing Date.
Appears in 2 contracts
Sources: Underwriting Agreement (TESARO, Inc.), Underwriting Agreement (TESARO, Inc.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any Option Closing Datesettlement date pursuant to Section 3 hereof, 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 to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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 Company shall have requested and caused Weil, Gotshal ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, U.S. counsel for the Company, to have furnished to the Representatives its opinions and negative assurance letter, each dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(c) The Company shall have requested and caused Walkers, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, in a form satisfactory to the Representatives.
(d) The Representatives shall have received from Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, each dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives 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.
(de) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement 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 the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(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 of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(ef) The Company shall have furnished to the Representatives a certificate signed by the Secretary or Assistant Secretary of the Company, dated the Closing Date, certifying (i) that the Amended and Restated Memorandum and Articles of Association of the Company are true and complete, have not been modified and are in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all correspondence between the Company or its counsel and the Commission, and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(g) The Company shall have requested and caused KPMG Withum to have furnished to the Representatives, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from June 29January 5, 2020 2021 (date of inception) through July 24January 11, 20202021, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letterletters.
(fh) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(gi) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(hj) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(ik) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(jl) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Trust Agreement, the Founder’s Purchase Agreement, the Warrant Sponsor Subscription Agreement, the Securities Assignment Agreements, the Insider Letters, the Registration Rights Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement.
(km) At least one Business Day prior to the Closing DateDate or a settlement date, as applicable, the Sponsor Company shall have caused proceeds from the purchase price for sale of the Private Placement Warrants Shares to be deposited into the Trust AccountAccount such that the cumulative amount deposited into the Trust Account as of such Closing Date or such settlement date, as applicable, shall equal the product of the number of Ordinary Shares issued in the Offering as of such Closing Date or such settlement date, as applicable, and the public offering price per Ordinary Share as set forth on the cover of the Prospectus.
(ln) No order preventing or suspending the sale of the Units Ordinary Shares in any jurisdiction designated by the Representatives pursuant to Section 5(g) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date;
(ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof;
(iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and
(v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. 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 Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein, on the Closing Date.
Appears in 2 contracts
Sources: Underwriting Agreement (Vector Acquisition Corp II), Underwriting Agreement (Vector Acquisition Corp II)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Firm Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any Option Closing Datesettlement date pursuant to Section 4 hereof, 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 to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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 Company shall have requested and caused Weil, Gotshal & Akin Gump S▇▇▇▇▇▇ H▇▇▇▇ & F▇▇▇ LLP, counsel for the Company, to have furnished to the Representatives its opinions and negative assurance letter, each dated the Closing Date and any settlement date, as applicable, and addressed to the Representatives, in a customary form reasonably acceptable to the Representatives.
(c) The Representatives shall have received from Ropes D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, each dated the Closing Date and any settlement date, as applicable, and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related customary matters as the Representatives 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 Company shall have furnished to the Representatives a certificate of the Company, signed by the its Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing DateDate and any settlement date, as applicable, to the effect that the signers of such certificate have carefully examined the Registration Statement Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and each “road show” as defined in Rule 433(h) of the Act used in connection with the Offering, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date such date with the same effect as if made on the Closing Date such date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Datesuch 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 of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(e) The Company shall have requested and caused KPMG BDO to have furnished to the Representatives, at the Execution Time and at the Closing DateDate and any settlement date, as applicable, letters, dated respectively as of the Execution Time and as of the Closing DateDate and any settlement date, as applicable, in form and substance reasonably satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from June 29, 2020 (date of inception) through July 24, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 7 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(g) Prior to the Closing Date, and any settlement date, as applicable, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(h) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(i) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(j) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Trust Agreement, the Forward Purchase Agreements, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement Agreement, the Registration Rights Agreement, the Insider Letter and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement.
(k) At least one Business Day prior to the Closing DateDate or any settlement date, as applicable, the Sponsor Company shall have caused proceeds from the purchase price for sale of the Private Placement Warrants to be deposited into the Trust AccountAccount such that the cumulative amount deposited into the Trust Account as of such Closing Date or such settlement date, as applicable, shall equal the product of the number of Units issued in the Offering as of such Closing Date or such settlement date, as applicable, and the public offering price per Unit as set forth on the cover of the Prospectus.
(l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(g6(ii) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date;
(ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof;
(iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and
(v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. If any of the conditions specified in this Section 6 7 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions, negative assurance letters opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. 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 7 and, if applicable, the last sentence of Section 4(c), shall be delivered at the office of Ropes D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇4▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: D▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein, on the Closing DateDate or the applicable settlement date, as applicable.
Appears in 2 contracts
Sources: Underwriting Agreement (Zimmer Energy Transition Acquisition Corp.), Underwriting Agreement (Zimmer Energy Transition Acquisition Corp.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, Offered Notes shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any Option Closing Datein this Agreement, to the accuracy of the statements of the Company made in any applicable officers’ certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder under this Agreement and to the following additional conditionsconditions applicable to the Note Offering:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no 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 instituted, or threatenedto the knowledge of the Company, threatened by the Commission.
(b) The Company Counsel to each of the Company, GE Capital and the Issuer (who shall be satisfactory to the Representatives) shall have requested furnished to the Representatives an opinion or opinions, dated the Closing Date, in each case in form and caused Weilsubstance reasonably satisfactory to the Representatives and counsel for the Representatives, Gotshal & relating to certain enforceability, securities law and security interest matters.
c) In-house counsel for each of the Company and GE Capital shall have furnished to the Representatives an opinion, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and counsel for the Representatives.
d) The Representatives shall have received from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representatives its opinions and negative assurance letter, each dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(c) The Representatives shall have received from Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, each dated the Closing Date and addressed to the RepresentativesDate, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory ProspectusOffered Notes, the Prospectus (together with any supplement thereto) and such other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they the Representatives may reasonably request for the purpose of enabling them to pass upon such matters.
(de) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer and President, any Vice President, or the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers signatory of such certificate have has carefully examined the Registration Statement each Preliminary Prospectus, Program Documents to which the Prospectus and any amendment or supplement theretoCompany is a party, and this Agreement and that:
(i) , to the best of such person’s knowledge after reasonable investigation, the representations and warranties of the Company in this Agreement and the Program Documents to which the Company is a party are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date in all material respects, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;.
f) Counsel for the Indenture Trustee (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, who shall be satisfactory to the Company’s knowledge, threatened; and
(iiiRepresentatives) since the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(e) The Company shall have requested and caused KPMG to have furnished to the RepresentativesRepresentatives an opinion, at the Execution Time and at dated the Closing Date, lettersin form and substance reasonably satisfactory to the Representatives.
g) Counsel for the Owner Trustee (who shall be satisfactory to the Representatives) shall have furnished to the Representatives an opinion, dated respectively as of the Execution Time Closing Date, in form and substance reasonably satisfactory to the Representatives.
h) Counsel for the Company (who shall be satisfactory to the Representatives) shall have furnished to the Representatives (i) opinions, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives, relating to certain bankruptcy matters and Federal income tax matters and (ii) a signed negative assurance letter, dated as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect relating to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from June 29, 2020 (date of inception) through July 24, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Preliminary Prospectus, the Prospectus and the Prospectus Ratings FWP.
i) The Representatives shall have received a letter, dated the Closing Date or such other date as may be agreed upon between the Representatives and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References from certified public accountants (who shall be satisfactory to the Prospectus Representatives), substantially in this paragraph (e) include any supplement thereto at the date of form previously approved by the letterRepresentatives.
(fj) Subsequent to The Offered Notes shall have received the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease ratings specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto)Ratings FWP.
(gk) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(hl) FINRA shall not have raised any objection with respect Subsequent to the fairness or reasonableness date of the underwriting or other arrangements of the transactions contemplated hereby.
(i) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital MarketProspectus, satisfactory evidence of which shall have been provided to the Representatives.
(j) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement.
(k) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(g) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date;
(ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof;
(iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and
(v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. If any of the conditions specified in this Section 6 there shall not have been fulfilled when and as provided any material adverse change in this Agreement, the business or if any properties of the opinions, negative assurance letters and certificates mentioned above or elsewhere Company which in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations reasonable judgment of the Underwriters hereunder may be canceled atRepresentatives, after consultation with the Company, materially impairs the investment quality of the Offered Notes so as to make it impractical or at any time prior to, inadvisable to proceed with the Closing Date public offering or the delivery of such Offered Notes as contemplated by the Representatives. 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 Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein, on the Closing DateProspectus.
Appears in 2 contracts
Sources: Underwriting Agreement (CDF Funding, Inc.), Underwriting Agreement (CDF Funding, Inc.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Firm Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any Option Closing Datesettlement date pursuant to Section 4 hereof, 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 to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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 Company shall have requested and caused Weil, Gotshal ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representatives Representative its opinions and negative assurance letter, each dated the Closing Date and any settlement date, as applicable, and addressed to the RepresentativesRepresentative, in a form reasonably acceptable to the RepresentativesRepresentative.
(c) The Representatives Company shall have requested and caused ▇▇▇▇▇▇ and Calder, Cayman Islands counsel for the Company, to have furnished to the Representative its opinions dated the Closing Date and any settlement date, as applicable, and addressed to the Representative, in a form reasonably acceptable to the Representative.
(d) The Representative shall have received from Ropes Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, each dated the Closing Date and any settlement date, as applicable, and addressed to the RepresentativesRepresentative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives Representative 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.
(de) The Company shall have furnished to the Representatives Representative a certificate of the Company, signed by the its Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing DateDate and any settlement date, as applicable, to the effect that the signers of such certificate have carefully examined the Registration Statement Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and each “road show” as defined in Rule 433(h) of the Act used in connection with the Offering, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date such date with the same effect as if made on the Closing Date such date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Datesuch 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 of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(ef) The Company shall have requested and caused KPMG Withum to have furnished to the RepresentativesRepresentative, at the Execution Time and at the Closing DateDate and any settlement date, as applicable, letters, dated respectively as of the Execution Time and as of the Closing DateDate and any settlement date, as applicable, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from June 29, 2020 (date of inception) through July 24, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letterRepresentative.
(fg) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (ef) of this Section 6 7 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the RepresentativesRepresentative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(gh) Prior to the Closing Date, and any settlement date, as applicable, the Company shall have furnished to the Representatives Representative such further information, certificates and documents as the Representatives Representative may reasonably request.
(hi) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(ij) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital MarketNasdaq, satisfactory evidence of which shall have been provided to the RepresentativesRepresentative.
(jk) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Insider Letters Letter, the Registration and Shareholder Rights Agreement and the Registration Rights Administrative Services Agreement.
(kl) At least one Business Day prior to the Closing DateDate or a settlement date, as applicable, the Sponsor Company shall have caused proceeds from the purchase price for sale of the Private Placement Warrants to be deposited into the Trust AccountAccount such that the cumulative amount deposited into the Trust Account as of such Closing Date or such settlement date, as applicable, shall equal the product of the number of Units issued in the Offering as of such Closing Date or such settlement date, as applicable, and the public offering price per Unit as set forth on the cover of the Prospectus.
(lm) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives Representative pursuant to Section 5(g6(ii) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date;
(ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof;
(iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and
(v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. If any of the conditions specified in this Section 6 7 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions, negative assurance letters opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the RepresentativesRepresentative. 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 7 and, if applicable, the last sentence of Section 4(c), shall be delivered at the office of Ropes Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein, on the Closing DateDate or the applicable settlement date, as applicable.
Appears in 2 contracts
Sources: Underwriting Agreement (Jaws Juggernaut Acquisition Corp), Underwriting Agreement (Jaws Juggernaut Acquisition Corp)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any Option Closing Datesettlement date pursuant to Section 3 hereof, 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 to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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 Company shall have requested and caused Weil, Gotshal & ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representatives Representative its opinions and negative assurance letter, each dated the Closing Date and addressed to the Representatives, Representative in a the form reasonably acceptable to the Representativesattached as Exhibit A hereto.
(c) The Representatives Representative shall have received from Ropes Akin Gump ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, each dated the Closing Date and addressed to the RepresentativesRepresentative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives Representative 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 Company shall have furnished to the Representatives Representative a certificate of the Company, signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(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 of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(e) The Company shall have furnished to the Representatives a certificate signed by the Secretary or Assistant Secretary of the Company, dated the Closing Date, certifying (i) that the Amended and Restated Certificate of Incorporation and the Bylaws of the Company are true and complete, have not been modified and are in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all correspondence between the Company or its counsel and the Commission, and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(f) The Company shall have requested and caused KPMG ▇▇▇▇▇▇▇▇▇ to have furnished to the RepresentativesRepresentative, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the RepresentativesRepresentative, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from June 29October 24, 2020 2013 (date of inception) through July 24to November 20, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable2013, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and;
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation; and
(iii) statements as to such other matters incident to the transaction contemplated hereby as the Representatives may reasonably request. References to the Prospectus in this paragraph (ef) include any supplement thereto at the date of the letter.
(fg) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (ef) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the financial condition, earnings, business, management, properties, assets, rights, operations, condition (financial business or otherwise) or prospects properties of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the RepresentativesRepresentative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(gh) Prior to the Closing Date, the Company shall have furnished to the Representatives Representative such further information, certificates and documents as the Representatives Representative may reasonably request.
(hi) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(ij) The Securities shall be duly listed subject to notice of issuance on the Nasdaq NASDAQ Capital Market, satisfactory evidence of which shall have been provided to the RepresentativesRepresentative.
(jk) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Securities Assignment Agreement, the Warrant Subscription Agreement, the Escrow Agreement and each of the Insider Letters and the Registration Rights AgreementLetters.
(kl) On the Execution Date, the Company shall have caused to be duly executed and delivered a letter from each Participant, substantially in the form of Exhibit C hereto.
(m) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited funded into the Trust Account.
(ln) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives Representative pursuant to Section 5(g5(kk) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date;
(ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof;
(iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and
(v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the RepresentativesRepresentative. 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 Ropes Akin Gump ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein, on the Closing Date.
Appears in 2 contracts
Sources: Underwriting Agreement (Boulevard Acquisition Corp.), Underwriting Agreement (Boulevard Acquisition Corp.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any Option Closing Datesettlement date pursuant to Section 3 hereof, 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 to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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 Company shall have requested and caused Weil, Gotshal ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representatives its opinions and negative assurance letter, each dated the Closing Date and addressed to the Representatives, Representatives in a form reasonably and substance acceptable to the Representatives.
(c) The Company shall have requested and caused Walkers, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives in form and substance acceptable to the Representatives.
(d) The Representatives shall have received from Ropes ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, each dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives 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.
(de) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer and the principal financial or accounting officer and the secretary of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, as well as each road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(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 of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(ef) The Company shall have furnished to the Representatives a certificate signed by the Secretary or Assistant Secretary of the Company, dated the Closing Date, certifying (i) that the Amended and Restated Memorandum and Articles of Association of the Company are true and complete, have not been modified and are in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all correspondence between the Company or its counsel and the Commission, and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(g) The Company shall have requested and caused KPMG Withum to have furnished to the Representatives, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review an audit of the audited financial statements of the Company for the period from June 29September 14, 2020 2017 (date of inception) through July 24September 27, 20202017, provided that the cutoff date shall not be more than two business days Business Days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (eg) include any supplement thereto at the date of the letter.
(fh) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (eg) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) ), earnings, business or prospects properties of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(g) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(hi) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(ij) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital MarketNew York Stock Exchange, satisfactory evidence of which shall have been provided to the Representatives.
(jk) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Forward Purchase Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement, the Services Agreement, the Private Placement Warrants Purchase Agreement and the Insider Letters.
(kl) At least one (1) Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(lm) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(g5(ii) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date;
(ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof;
(iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and
(v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. 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 Ropes ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein, on the Closing Date.
Appears in 2 contracts
Sources: Underwriting Agreement (Regalwood Global Energy Ltd.), Underwriting Agreement (Regalwood Global Energy Ltd.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any Option Closing Datesettlement date pursuant to Section 3 hereof, 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 to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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 Company shall have requested and caused Weil, Gotshal Ropes & ▇▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representatives its opinions and negative assurance letter, each dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(c) The Representatives shall have received from Ropes ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, each dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives 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 Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing DateDate or settlement date (as applicable), to the effect that the signers of such certificate have carefully examined the Registration Statement Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, as well as each road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date or settlement date (as applicable) with the same effect as if made on the Closing Date or settlement date (as applicable), and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing DateDate or settlement date (as applicable);
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued 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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(e) The Company shall have furnished to the Representatives a certificate signed by the Secretary or Assistant Secretary of the Company, dated the Closing Date, certifying that the Amended and Restated Certificate of Incorporation and bylaws of the Company are true and complete, have not been modified and are in full force and effect, that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, copies of all correspondence between the Company or its counsel and the Commission, and as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(f) The Company shall have requested and caused KPMG WithumSmith to have furnished to the Representatives, at the Execution Time and at the Closing DateDate or settlement date (as applicable), letters, dated respectively as of the Execution Time and as of the Closing DateDate or settlement date (as applicable), in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for included in the period from June 29Registration Statement, 2020 (date of inception) through July 24, 2020Statutory Prospectus and Prospectus, provided that the cutoff date shall not be more than two business days Business Days prior to such Execution Time or Closing DateDate or settlement date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (ef) include any supplement thereto at the date of the letter.
(fg) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, which is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(gh) Prior to the Closing DateDate or settlement date (as applicable), the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(hi) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(ij) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital MarketNew York Stock Exchange, satisfactory evidence of which shall have been provided to the Representatives.
(jk) On the Effective Closing Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Subscription Agreement, the Warrant Purchase Agreement, the Insider Letters Letter and the Registration and Stockholder Rights Agreement.
(kl) At least one Business Day prior to the Closing DateDate or settlement date (as applicable), the Sponsor Company shall have caused the applicable purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(lm) No order preventing or suspending the sale of the Units Securities in any jurisdiction designated by the Representatives pursuant to Section 5(g5(hh) hereof shall have been issued as of the Closing DateDate or settlement date (as applicable), and no proceedings for that purpose shall have been instituted or shall have been threatened.
(mn) The several obligations On or before the date of this Agreement, the Representatives shall have received a certificate satisfying the beneficial ownership due diligence requirements of the Underwriters to purchase Option Securities hereunder are subject to Financial Crimes Enforcement Network (“FinCEN”) from the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date;
(ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof;
(iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof;
(iv) a letter dated the Option Closing Date, Company in form and substance reasonably satisfactory to the Representatives, from KPMG substantially in the same form and substance along with such additional supporting documentation as the letter furnished to Representatives has requested in connection with the Underwriters pursuant to Section 6(e) hereof; provided that verification of the cutoff date shall not be more than two business days prior to such Option Closing Date; and
(v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securitiesforegoing certificate. 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, negative assurance letters opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled cancelled at, or at any time prior to, the Closing Date by the Representatives. 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 Ropes in electronic format to ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇▇▇ ▇Attention: ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein, on the Closing DateDate or settlement date (as applicable).
Appears in 2 contracts
Sources: Underwriting Agreement (Climate Change Crisis Real Impact I Acquisition Corp), Underwriting Agreement (Climate Change Crisis Real Impact I Acquisition Corp)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities Units and the Option SecuritiesUnits, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any Option Closing Datesettlement date pursuant to Section 3 hereof, 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 to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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 Company shall have requested and caused Weil, Gotshal & P▇▇▇ ▇▇▇▇▇▇▇▇ LLP, U.S. counsel for the Company, to have furnished to the Representatives Representative its opinions and negative assurance letter, each dated the Closing Date and addressed to the RepresentativesRepresentative, in a form reasonably acceptable to the RepresentativesRepresentative.
(c) The Representatives Company shall have requested and caused M▇▇▇▇▇ and Calder, Cayman Islands counsel for the Company, to have furnished to the Representative its opinions dated the Closing Date and addressed to the Representative, in a form satisfactory to the Representative.
(d) The Representative shall have received from Ropes & ▇G▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, each dated the Closing Date and addressed to the RepresentativesRepresentative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives Representative 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.
(de) The Company shall have furnished to the Representatives Representative a certificate of the Company, signed by the Chief Executive Financial Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers signer of such certificate have has carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement 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 the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(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 of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(ef) The Company shall have furnished to the Representative a certificate signed by the Secretary of the Company, dated the Closing Date, certifying (i) that the Amended and Restated Memorandum and Articles of Association of the Company are true and complete, have not been modified and are in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all correspondence between the Company or its counsel and the Commission, and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(g) The Company shall have requested and caused KPMG M▇▇▇▇▇ to have furnished to the RepresentativesRepresentative, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the RepresentativesRepresentative, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company as of December 18, 2020 and for the period from June 29November 24, 2020 (date of inception) through July 24December 18, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (ef) include any supplement thereto at the date of the letter.
(fh) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (ef) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the RepresentativesRepresentative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(gi) Prior to the Closing Date, the Company shall have furnished to the Representatives Representative such further information, certificates and documents as the Representatives Representative may reasonably request.
(hj) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(ik) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the RepresentativesRepresentative.
(jl) On or prior to the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Private Placement Warrants Purchase Agreement, Insider Letters and Letter, the Registration Rights Agreement and the Administrative Services Agreement.
(km) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust AccountAccount such that the cumulative amount deposited into the Trust Account as of such Closing Date or such settlement date, as applicable, shall equal the product of the number of Units issued in the offering as of such Closing Date or such settlement date, as applicable, and the public offering price per Unit as set forth on the cover of the Prospectus.
(ln) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives Representative pursuant to Section 5(g5(ii) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date;
(ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof;
(iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and
(v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the RepresentativesRepresentative. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile electronic mail confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Ropes & ▇G▇▇▇ LLP, counsel for the Underwriters, at ▇1▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: P▇▇▇ ▇. ▇▇▇▇▇ and C▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, unless otherwise indicated herein, on the Closing Date.
Appears in 2 contracts
Sources: Underwriting Agreement (Centricus Acquisition Corp.), Underwriting Agreement (Centricus Acquisition Corp.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any Option Additional Closing DateDate pursuant to Section 3 hereof, 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 to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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 Company shall have requested and caused Weil, Gotshal & Ellenoff ▇▇▇▇▇▇▇▇ & Schole LLP, counsel for the Company, to have furnished to the Representatives Representative its opinions and negative assurance letter, each dated the Closing Date and addressed to the RepresentativesRepresentative, in a form reasonably acceptable to the RepresentativesRepresentative.
(c) The Representatives Representative shall have received from Ropes & ▇▇▇▇ ▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, each dated the Closing Date and addressed to the RepresentativesRepresentative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory ProspectusGeneral Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representatives Representative 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 Company shall have furnished to the Representatives Representative a certificate of the Company, signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement 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 the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(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 of the most recent financial statements included in the Statutory Prospectus General Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus General Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(e) The Company shall have requested and caused KPMG ▇▇▇▇▇▇ to have furnished to the RepresentativesRepresentative, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the RepresentativesRepresentative, confirming that they are it is a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have it has performed a review (i) an audit of the audited financial statements of the Company for the period from June 29November 17, 2020 (date of inception) through July 24November 30, 2020, provided that the cutoff date shall not be more than two business days Business Days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(g) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(h) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(i) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(j) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement.
(k) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(g) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date;
(ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof;
(iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and
(v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. 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 Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein, on the Closing Date.
Appears in 2 contracts
Sources: Underwriting Agreement (African Gold Acquisition Corp), Underwriting Agreement (African Gold Acquisition Corp)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any Option Closing Datesettlement date pursuant to Section 3 hereof, 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 to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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 Company shall have requested and caused Weil▇▇▇▇, Gotshal Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, U.S. counsel for the Company, to have furnished to the Representatives Representative its opinions and negative assurance letter, each dated the Closing Date or the settlement date, as the case may be, and addressed to the RepresentativesRepresentative, in a form reasonably acceptable satisfactory to the RepresentativesRepresentative.
(c) The Representatives Company shall have requested and caused ▇▇▇▇▇▇ and Calder, Cayman Islands counsel for the Company, to have furnished to the Representative its opinions dated the Closing Date or the settlement date, as the case may be, and addressed to the Representative, in a form reasonably satisfactory to the Representative.
(d) The Representative shall have received from Ropes Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, each dated the Closing Date or the settlement date, as the case may be, and addressed to the RepresentativesRepresentative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(de) The Company shall have furnished to the Representatives Representative a certificate of the Company, signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing DateDate or the settlement date, as the case may be, to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, 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 the Closing Date such date with the same effect as if made on the Closing Date such date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Datesuch 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 of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(ef) The Company shall have requested and caused KPMG ▇▇▇▇▇▇ to have furnished to the RepresentativesRepresentative, at the Execution Time and at the Closing DateDate or the settlement date, as the case may be, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the RepresentativesRepresentative, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review containing statements and information of the audited financial statements type ordinarily included in accountant’s “comfort letters” to underwriters, delivered according to Statement of the Company for the period from June 29Auditing Standards No. 72 (or any successor bulletin), 2020 (date of inception) through July 24, 2020, provided that the cutoff date shall not be more than two business days prior with respect to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited and unaudited financial statements and certain financial statement schedules included information contained in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus Statement and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (ef) include any supplement thereto at the date of the letter.
(fg) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, which is, in the sole judgment of the RepresentativesRepresentative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(gh) Prior to the Closing DateDate or the settlement date, as the case may be, the Company shall have furnished to the Representatives Representative such further information, certificates and documents as the Representatives Representative may reasonably request.
(hi) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(ij) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, New York Stock Exchange satisfactory evidence of which shall have been provided to the RepresentativesRepresentative.
(jk) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives Representative executed copies of the Trust Agreement, the Public Warrant Agreement, the Private Warrant Agreement, the Founder’s Subscription Agreement, the Sponsor Co-Investor’s Subscription Agreement, the Sponsor Warrant Purchase Agreement, the Sponsor Co-Investor Warrant Purchase Agreement, the Insider Letters and Letter, the Registration Rights Agreement and the Services Agreement.
(kl) At least one Business Day prior to the Closing DateDate or the settlement date, as the case may be, the Sponsor shall have caused the purchase price for the Sponsor Private Placement Warrants and the Sponsor Co-Investor Private Placement Warrants to be wired to the Company and the Company shall direct the trustee to deposit such funds into the Trust Account and to hold such funds in the Trust Account such that the cumulative amount deposited into the Trust AccountAccount as of such Closing Date or settlement date shall equal the product of the number of Units sold in the Offering as of such Closing Date or settlement date and the public offering price per Unit as set forth on the cover of the Prospectus.
(lm) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives Representative pursuant to Section 5(g5(ii) hereof shall have been issued as of the Closing DateDate or the settlement date, as the case may be, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date;
(ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof;
(iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and
(v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the RepresentativesRepresentative. 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 Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein, on the Closing Date.
Appears in 2 contracts
Sources: Underwriting Agreement (Andretti Acquisition Corp.), Underwriting Agreement (Andretti Acquisition Corp.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any Option Closing Datesettlement date pursuant to Section 3 hereof, 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 to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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 Company shall have requested and caused Weil, Gotshal & ▇▇▇▇▇▇▇ ▇▇▇▇, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representatives its opinions and negative assurance letter, each dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(c) The Company shall have requested and caused ▇▇▇▇▇▇ and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(d) The Representatives shall have received from Ropes & Freshfields Bruckhaus ▇▇▇▇▇▇▇▇ US LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, each dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives 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.
(de) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement 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 the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(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 of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(ef) The Company shall have requested and caused KPMG to have furnished to the Representatives, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from June 29March 15, 2020 2016 (date of inception) through July 24April 11, 20202016, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” Dilution and “Capitalization” Capitalization in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (ef) include any supplement thereto at the date of the letter.
(fg) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (ef) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(gh) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(hi) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(ij) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(jk) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, Securities Assignment Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider Letter, the Registration Rights Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement.
(kl) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust AccountAccount (for the avoidance of doubt, such purchase price may be returned to the Sponsor to the extent the Closing Date does not occur within ten (10) business days from the date of this Agreement, as provided in the Trust Agreement).
(lm) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(g5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date;
(ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof;
(iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and
(v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. 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 Ropes & Freshfields Bruckhaus ▇▇▇▇▇▇▇▇ US LLP, counsel for the Underwriters, at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ , ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein, on the Closing Date.
Appears in 2 contracts
Sources: Underwriting Agreement (Saban Capital Acquisition Corp.), Underwriting Agreement (Saban Capital Acquisition Corp.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any Option Closing Datesettlement date pursuant to Section 3 hereof, 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 hereunder, including, if applicable, the last sentence of Section 3(b) hereof, and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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 Company shall have requested and caused Weil, Gotshal & Ellenoff G▇▇▇▇▇▇▇ & Schole LLP, counsel for the Company, to have furnished to the Representatives its opinions and negative assurance letter, each dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(c) The Company shall have requested and caused M▇▇▇▇▇ and Calder, counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(d) The Representatives shall have received from Ropes D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, each dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives 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.
(de) The Company shall have furnished to the Representatives a certificate signed by the Chief Financial Officer of the Company, dated the Closing Date, certifying (i) that the Amended and Restated Memorandum and Articles of Association of the Company are true and complete, have not been modified and are in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all correspondence between the Company or its counsel and the Commission, and (iv) as to the incumbency of the Chief Executive Officer of the Company. The documents referred to in such certificate shall be attached to such certificate.
(f) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement 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 the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(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 of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(eg) The Company shall have requested and caused KPMG M▇▇▇▇▇ to have furnished to the Representatives, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from June 29October 14, 2020 (date of inception) through July 24November 4, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (eg) include any supplement thereto at the date of the letter.
(fh) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (eg) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(gi) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(hj) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(ik) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital MarketNasdaq, satisfactory evidence of which shall have been provided to the Representatives.
(jl) On the Effective Datedate hereof, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founders’ Purchase Agreement, the Warrant Subscription Agreement, the Insider Letters Letters, the Administrative Services Agreement and the Registration Rights Agreement.
(km) At least one Business Day prior to the Closing DateDate or the settlement date, as applicable, the Sponsor shall have caused the purchase price for the Private Placement Warrants Portion to be deposited into the Trust AccountAccount such that the cumulative amount deposited into the Trust Account as of such Closing Date or settlement date shall equal the product of the number of Units sold in the public offering as of such Closing Date or settlement date and the public offering price per Unit as set forth on the cover of the Prospectus.
(ln) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(g5(ii) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date;
(ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof;
(iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and
(v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. 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 Ropes D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇4▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: D▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein, on the Closing Date.
Appears in 2 contracts
Sources: Underwriting Agreement (North Atlantic Acquisition Corp), Underwriting Agreement (North Atlantic Acquisition Corp)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities Units and the Option SecuritiesUnits, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any Option Closing Datesettlement date pursuant to Section 3 hereof, 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 to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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 Company shall have requested and caused Weil, Gotshal & Ellenoff ▇▇▇▇▇▇▇▇ & Schole LLP, counsel for the Company, to have furnished to the Representatives Representative its opinions and negative assurance letter, each dated the Closing Date and addressed to the RepresentativesRepresentative, in a form reasonably acceptable to the RepresentativesRepresentative.
(c) The Representatives Company shall have requested and caused ▇▇▇▇▇▇ and Calder, Cayman Islands counsel for the Company, to have furnished to the Representative its opinions dated the Closing Date and addressed to the Representative, in a form satisfactory to the Representative.
(d) The Representative shall have received from Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, each dated the Closing Date and addressed to the RepresentativesRepresentative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives Representative 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.
(de) The Company shall have furnished to the Representatives Representative a certificate of the Company, signed by the Chief Executive Financial Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers signer of such certificate have has carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement 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 the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(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 of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(ef) The Company shall have furnished to the Representative a certificate signed by the Secretary or the Assistant Secretary of the Company, dated the Closing Date, certifying (i) that the Amended and Restated Memorandum and Articles of Association of the Company are true and complete, have not been modified and are in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all correspondence between the Company or its counsel and the Commission, and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(g) The Company shall have requested and caused KPMG Withum to have furnished to the RepresentativesRepresentative, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the RepresentativesRepresentative, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company as of October 5, 2020 and for the period from June 29September 24, 2020 (date of inception) through July 24October 5, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (ef) include any supplement thereto at the date of the letter.
(fh) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (ef) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the RepresentativesRepresentative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(gi) Prior to the Closing Date, the Company shall have furnished to the Representatives Representative such further information, certificates and documents as the Representatives Representative may reasonably request.
(hj) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(ik) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the RepresentativesRepresentative.
(jl) On or prior to the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Placement Unit Subscription Agreement, Insider Letters and Letter, the Registration Rights Agreement and the Administrative Services Agreement.
(km) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants Units to be deposited into the Trust AccountAccount such that the cumulative amount deposited into the Trust Account as of such Closing Date or such settlement date, as applicable, shall equal the product of the number of Units issued in the offering as of such Closing Date or such settlement date, as applicable, and the public offering price per Unit as net forth on the cover of the Prospectus.
(ln) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives Representative pursuant to Section 5(g5(ii) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date;
(ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof;
(iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and
(v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the RepresentativesRepresentative. 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 Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, unless otherwise indicated herein, on the Closing Date.
Appears in 2 contracts
Sources: Underwriting Agreement (Sports Ventures Acquisition Corp.), Underwriting Agreement (Sports Ventures Acquisition Corp.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any Option Closing Datesettlement date pursuant to Section 3 hereof, 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 to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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 Company shall have requested and caused Weil, Gotshal & Akin Gump ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representatives its opinions and negative assurance letterRepresentative their opinion, each dated the Closing Date and addressed to the Representatives, Representative in a the form reasonably acceptable to the Representativesattached as Exhibit A hereto.
(c) The Representatives Representative shall have received from Ropes & ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, each dated the Closing Date and addressed to the RepresentativesRepresentative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives Representative 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 Company shall have furnished to the Representatives Representative a certificate of the Company, signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement 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 the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(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 of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(e) The Company shall have requested and caused KPMG to have furnished to the RepresentativesRepresentative, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the RepresentativesRepresentative, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited unaudited interim financial statements information of the Company as of ___, 2010 and for the period from June 29___, 2020 2010 (date of inception) through July 24to ___, 20202010, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, in accordance with Statement on Auditing Standards No. 100 and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission;
(ii) on the basis of a reading of the latest unaudited financial statements made available by the Company; if any; their limited review, in accordance with standards established under Statement on Auditing Standards No. 100, of the unaudited interim financial information as of ___, 2010 and for the period ___, 2010 (inception) to ___, 2010; carrying out certain specified procedures (but not an audit in accordance with generally accepted auditing standards) which would not necessarily reveal matters of significance with respect to the comments set forth in such letter; a reading of the minutes of the meetings, if any, of the stockholders, directors and audit, governance and nominating committees of the Company; and inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company and its subsidiaries as to transactions and events subsequent to ___, 2010, nothing came to their attention which caused them to believe that:
(1) any unaudited financial statements included in the Registration Statement, the Statutory Prospectus and the Prospectus do not comply as to form with applicable accounting requirements of the Act and with the related rules and regulations adopted by the Commission with respect to registration statements on Form S-1; and said unaudited financial statements are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included in the Registration Statement, the Statutory Prospectus and the Prospectus; and
(ii2) with respect to the period subsequent to ___, 2010, there were any changes, at a specified date not more than five days prior to the date of the letter, in the long-term debt of the Company or capital stock of the Company or decreases in the stockholders’ equity of the Company as compared with the amounts shown on the ___, 2010 balance sheet included in the Registration Statement, the Statutory Prospectus and the Prospectus, except in all instances for changes or decreases set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Representative;
(iii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the financial condition, earnings, business, management, properties, assets, rights, operations, condition (financial business or otherwise) or prospects properties of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the RepresentativesRepresentative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(g) Prior to the Closing Date, the Company shall have furnished to the Representatives Representative such further information, certificates and documents as the Representatives Representative may reasonably request.
(h) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(i) The Securities shall be duly listed subject to notice of issuance have been authorized for quotation on the Nasdaq Capital MarketOTC Bulletin Board, and satisfactory evidence of which such actions shall have been provided to the RepresentativesRepresentative.
(j) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Services Agreement and each of the Insider Letters and the Registration Rights AgreementLetters.
(k) At least one Business Day prior to On or before the Closing Effective Date, the Sponsor Representative shall have caused received the purchase price for the Private Placement Warrants to be deposited into the Trust AccountSecondary Market Trading Survey from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ LLP.
(l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives Representative pursuant to Section 5(g5(gg) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date;
(ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof;
(iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and
(v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the RepresentativesRepresentative. 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 Ropes & ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein, on the Closing Date.
Appears in 2 contracts
Sources: Underwriting Agreement (Hicks Acquisition CO II, Inc.), Underwriting Agreement (Hicks Acquisition CO II, Inc.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any Option Closing Datesettlement date pursuant to Section 3 hereof, 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 to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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 Company shall have requested and caused Weil, Gotshal ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representatives Representative its opinions and negative assurance letter, each dated the Closing Date and any settlement date, as applicable, and addressed to the RepresentativesRepresentative, in a form reasonably acceptable to the RepresentativesRepresentative.
(c) The Representatives Company shall have requested and caused Mourant Ozannes, Cayman Islands counsel for the Company, to have furnished to the Representative its opinions dated the Closing Date and any settlement date, as applicable, and addressed to the Representative, in a form reasonably acceptable to the Representative.
(d) The Representative shall have received from Ropes Shearman & ▇▇▇▇ Sterling LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, each dated the Closing Date and any settlement date, as applicable, and addressed to the RepresentativesRepresentative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives Representative 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.
(de) The Company shall have furnished to the Representatives Representative a certificate of the Company, signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing DateDate and any settlement date, as applicable, to the effect that the signers of such certificate have carefully examined the Registration Statement Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and each “road show” as defined in Rule 433(h) of the Act used in connection with the Offering, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date such date with the same effect as if made on the Closing Date such date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Datesuch 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 of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(ef) The Company shall have requested and caused KPMG ▇▇▇▇▇▇ to have furnished to the RepresentativesRepresentative, at the Execution Time and at the Closing DateDate and any settlement date, as applicable, letters, dated respectively as of the Execution Time and as of the Closing DateDate and any settlement date, as applicable, in form and substance satisfactory to the RepresentativesRepresentative, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from June 29January 5, 2020 2021 (date of inception) through July 24January 12, 20202021, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(fg) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the RepresentativesRepresentative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(gh) Prior to the Closing DateDate and any settlement date, as applicable, the Company shall have furnished to the Representatives Representative such further information, certificates and documents as the Representatives Representative may reasonably request.
(hi) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(ij) The Securities shall be duly listed subject to notice of issuance on the The Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the RepresentativesRepresentative.
(jk) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider Letters Letters, the Registration and Shareholder Rights Agreement and the Registration Rights Administrative Services Agreement.
(kl) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(lm) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives Representative pursuant to Section 5(g5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date;
(ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof;
(iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and
(v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the RepresentativesRepresentative. 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 Ropes Shearman & ▇▇▇▇ Sterling LLP, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, unless otherwise indicated herein, on the Closing Date.
Appears in 2 contracts
Sources: Underwriting Agreement (L Catterton Asia Acquisition Corp), Underwriting Agreement (L Catterton Asia Acquisition Corp)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any Option Closing Datesettlement date pursuant to Section 3 hereof, 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 to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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 Company shall have requested and caused Weil, Gotshal ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representatives its opinions their opinion and negative assurance letter, each dated the Closing Date and addressed to the Representatives, in a the form previously agreed to by, and reasonably acceptable to satisfactory to, the Representatives.
(c) The Company shall have requested and caused ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ & ▇▇▇, P.L.L.C., intellectual property counsel for the Company, to have furnished to the Representatives such opinion or opinions dated the Closing Date and addressed to the Representatives, in the form previously agreed to by, and reasonably satisfactory to, the Representatives.
(d) The Company shall have requested and caused NautaDutilh N.V., Dutch counsel for the Company, to have furnished to the Representatives such opinion or opinions dated the Closing Date and addressed to the Representatives, in the form previously agreed to by, and reasonably satisfactory to, the Representatives.
(e) The Representatives shall have received from Ropes & ▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letter, each dated the Closing Date and addressed to the Representatives, with respect in the form previously agreed to the issuance by, and sale of the Securitiesreasonably satisfactory to, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably requireRepresentatives, 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.
(df) The Representatives shall have received from Van Doorne N.V., Dutch counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, in form and substance reasonably satisfactory to the Representatives.
(g) The Company shall have furnished to the Representatives a certificate of the Company, signed by the President and Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers signer of such certificate have has carefully examined the Registration Statement each Preliminary ProspectusStatement, the Disclosure Package, the Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(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 of the most recent financial statements included in or incorporated by reference into the Statutory Prospectus Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto), there has been no Material Adverse EffectEffect on the 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 Statutory Prospectus Registration Statement, the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(eh) The Company shall have requested and caused KPMG Accountants N.V. to have furnished to the Representatives, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance reasonably satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from June 29, 2020 (date of inception) through July 24, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:.
(i) in their opinion The Company shall have furnished to the audited Representatives a certificate, dated the respective dates of delivery addressed to the Representatives, of its Chief Financial Officer with respect to certain financial statements and financial statement schedules included data contained in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accountingDisclosure Package, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions providing “Dilutionmanagement comfort” with respect to such information, in form and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References substance reasonably satisfactory to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letterRepresentatives.
(fj) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus ) and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) ), earnings, business or prospects properties of the CompanyCompany 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 Statutory Prospectus Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, which is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(gk) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(h) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(il) The Securities shall be duly listed subject to notice of issuance and authorized for trading on the The Nasdaq Capital Global Market, and satisfactory evidence of which such actions shall have been provided to the Representatives.
(jm) On At the Effective DateExecution Time, the Company shall have delivered furnished to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement.
(k) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(g) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date;
(ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof;
(iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG lock-up agreement substantially in the same form of Exhibit A hereto (the “Lock-Up Agreement”) from each director and substance as member of senior management of the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and
(v) such further information, certificates Company and documents as Representatives may reasonably request with respect to the issuance of such Option Securitieseach other person listed on Schedule IV hereto. 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, negative assurance letters opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. 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 Ropes & ▇▇▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇New York, unless otherwise indicated herein, on the Closing DateNew York 10001.
Appears in 2 contracts
Sources: Underwriting Agreement (Merus N.V.), Underwriting Agreement (Merus N.V.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any Option Closing Datesettlement date pursuant to Section 3 hereof, 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 to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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 Company shall have requested and caused Weil, Gotshal Winston & ▇S▇▇▇▇▇ LLP, U.S. counsel for the Company, to have furnished to the Representatives its opinions and negative assurance letter, each dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable satisfactory to the Representatives.
(c) The Company shall have requested and caused M▇▇▇▇▇ and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, in a form satisfactory to the Representatives.
(d) The Representatives shall have received from Ropes Skadden, Arps, Slate, M▇▇▇▇▇▇ & ▇F▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, each dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives 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.
(de) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(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 of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(ef) The Company shall have furnished to the Representatives a certificate signed by the Secretary or Assistant Secretary of the Company, dated the Closing Date, certifying (i) that the Amended and Restated Memorandum and Articles of Association of the Company are true and complete, have not been modified and are in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all correspondence between the Company or its counsel and the Commission, and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(g) The Company shall have requested and caused KPMG Withum to have furnished to the Representatives, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from June 29July 12, 2020 2017 (date of inception) through July 24December 31, 20202017, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(fh) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(gi) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(hj) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(ik) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(jl) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Subscription Agreement, the Warrant Purchase Agreement, each of the Insider Letters and Letters, the Registration Rights Agreement and the Services Agreement.
(km) At least one Business Day prior to the Closing Date, the Sponsor Initial Shareholders shall have caused the purchase price for the Private Placement Warrants to be deposited wired to the Company and the Company shall direct the escrow agent to deposit such funds into the Trust AccountAccount and to hold such funds in escrow therein.
(ln) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(g5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date;
(ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof;
(iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and
(v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. 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 Ropes Skadden, Arps, Slate, M▇▇▇▇▇▇ & ▇F▇▇▇ LLP, counsel for the Underwriters, at 3▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ , ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: G▇▇▇▇ ▇. ▇▇▇▇ and J▇▇▇▇▇▇▇ ▇▇, unless otherwise indicated herein, on the Closing Date.
Appears in 2 contracts
Sources: Underwriting Agreement (Platinum Eagle Acquisition Corp.), Underwriting Agreement (Platinum Eagle Acquisition Corp.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholders contained herein as of the Execution Time, the Closing Date and any Option Closing Datesettlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company and the Selling Stockholders made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholders of its obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other 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 term period prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to that would prevent its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Weil, Gotshal O’Melveny & ▇▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representatives its opinions and negative assurance letteropinion, each dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representativeseffect set forth in Annex B hereto.
(c) The Company shall have caused ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Executive Vice President-Corporate Development, General Counsel and Secretary of the Company to have furnished to the Representatives his opinion, dated the Closing Date and addressed to the Representatives, to the effect as set forth in Annex C hereto.
(d) AMDI shall have requested and caused its counsel, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, to have furnished to the Representatives its opinion, dated the Closing Date and addressed to the Representatives, to the effect set forth in Annex D hereto.
(e) Fujitsu shall have requested and caused its counsel, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, to have furnished to the Representatives its opinion, dated the Closing Date and addressed to the Representatives, to the effect set forth in Annex E hereto.
(f) The Representatives shall have received from Ropes ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇ LLP▇▇▇▇▇, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, each dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory ProspectusDisclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representatives 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.
(dg) The Company shall have furnished to the Representatives a certificate of the Company, signed by the President and Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date and any settlement date pursuant to Section 3 hereto substantially in the form of Exhibit A hereto.
(h) Each Selling Stockholder shall have furnished to the Representatives a certificate, signed by an officer such Selling Stockholder, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that:
(i) the representations and warranties of the Company such Selling Stockholder in this Agreement are true and correct in all material respects on and as of the Closing Date with to the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(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 of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(ei) The Company shall have requested and caused KPMG Ernst & Young LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from June 29, 2020 (date of inception) through July 24, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letterAnnex F hereto.
(fj) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), ) and the Statutory Prospectus Disclosure Package and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (eh) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) ), earnings, business or prospects properties of the CompanyCompany 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 Statutory Prospectus Disclosure Package and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), ) the Statutory Prospectus Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(gk) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(l) Prior to the Closing Date, the Company and the Selling Stockholders shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(h) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(im) The Securities shall be duly listed subject to notice of issuance have been included for listing on the Nasdaq Capital Market, Global Market and satisfactory evidence of which such action shall have been provided to the Representatives.
(jn) On At the Effective DateExecution Time, the Company shall have delivered furnished to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver a letter addressed to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement.
(k) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(g) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date;
(ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof;
(iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form of Exhibit B hereto from each of the executive officers and substance as directors of the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and
(v) such further information, certificates Company and documents as Representatives may reasonably request with respect to the issuance from an authorized officer of such Option Securitieseach of AMDI and Fujitsu. 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, negative assurance letters opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled cancelled at, or at any time prior to, the Closing Date by the Representatives. 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 Ropes ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇ LLP▇▇▇▇▇, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein, on the Closing Date.
Appears in 2 contracts
Sources: Underwriting Agreement (Spansion Inc.), Underwriting Agreement (Advanced Micro Devices Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Firm Securities and the Option Optional Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any Option Closing Datesettlement date pursuant to Section 4 hereof, 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 to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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 Company shall have requested and caused Weil, Gotshal & ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representatives its opinions and negative assurance letter, each dated the Closing Date and any settlement date, as applicable, and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(c) The Company shall have requested and caused ▇▇▇▇▇▇ and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and any settlement date, as applicable, and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(d) The Representatives shall have received from Ropes & ▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, each dated the Closing Date and any settlement date, as applicable, and addressed to the Representatives, with respect to the issuance and sale of the Offered Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives 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.
(de) The Company shall have furnished to the Representatives a certificate of the Company, signed by the its Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, and any settlement date, as applicable, to the effect that the signers of such certificate have carefully examined the Registration Statement and each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and each road show used in connection with the Offering, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(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 of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(ef) The Company shall have requested and caused KPMG Withum to have furnished to the Representatives, at the Execution Time and at the Closing DateDate and any settlement date, as applicable, letters, dated respectively as of the Execution Time and as of the Closing DateDate and any settlement date, as applicable, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from June 29December 16, 2020 (date of inception) through July 24December 31, 2020, ; provided that the cutoff date shall not be more than two business days Business Days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (eSection 7(f) include any supplement thereto at the date of the letter.
(fg) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (eSection 7(f) of this Section 6 hereof or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Offered Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(gh) Prior to the Closing DateDate and any settlement date, as applicable, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(hi) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(ij) The Offered Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital MarketNasdaq, satisfactory evidence of which shall have been provided to the Representatives.
(jk) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Forward Purchase Agreement, the Insider Letters Letter and the Registration Rights Agreement.
(kl) At least one Business Day prior to the Closing DateDate or a settlement date, as applicable, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(lm) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(g6(ii) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date;
(ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof;
(iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and
(v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. If any of the conditions specified in this Section 6 7 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions, negative assurance letters opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. 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 7 shall be delivered at the office of Ropes & ▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇▇, unless otherwise indicated herein, on the Closing DateDate and any settlement date, as applicable.
Appears in 2 contracts
Sources: Underwriting Agreement (Lead Edge Growth Opportunities, LTD), Underwriting Agreement (Lead Edge Growth Opportunities, LTD)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the any Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Manager contained herein as of the Execution Time, the Closing Date and any Option Closing Datesettlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company and the Manager made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other 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 Company At the Closing Date, the Representatives shall have requested received the favorable opinion, dated as of the Closing Date, of each of Sidley Austin LLP and caused Weil, Gotshal ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the CompanyCompany and the Manager, in form and substance reasonably satisfactory to counsel for the Underwriters, together with signed or reproduced copies of such letter for each of the other Underwriters substantially in the form set forth in Exhibit A and Exhibit B hereto, respectively, and to such further effect as counsel to the Underwriters may reasonably request. In rendering each such opinion, as applicable, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of New York or the Federal laws of the United States, to have furnished the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the Representatives its opinions extent they deem proper, on certificates of responsible officers of the Company and negative assurance letter, each dated public officials. References to the Final Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the RepresentativesDate.
(c) The Representatives shall have received from Ropes Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, each dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory ProspectusDisclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives 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 Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary ProspectusStatement, the Disclosure Package, the Final Prospectus and any amendment supplements or supplement amendments thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(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 of the most recent financial statements included or incorporated by reference in the Statutory Prospectus Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effectmaterial adverse effect on the 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 Statutory Prospectus Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(e) The Manager shall have furnished to the Representatives a certificate of the Manager, signed by the President of the Manager, dated the Closing Date, to the effect that the signer of such certificate has carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that the representations and warranties of the Manager in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date.
(f) The Company shall have requested and caused KPMG Deloitte & Touche LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, lettersletters (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from June 29, 2020 (date of inception) through July 24, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and certain financial statement schedules included information contained or incorporated by reference in the Registration Statement, the Statutory Prospectus Disclosure Package and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Final Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(fg) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus ) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (ef) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) ), earnings, business or prospects properties of the CompanyCompany 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 Statutory Prospectus Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(gh) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(hi) FINRA shall not have raised any objection with respect Prior to the fairness or reasonableness of Closing Date, the underwriting or other arrangements of the transactions contemplated hereby.
(i) The Securities shall be duly have been listed subject to notice of issuance and admitted and authorized for trading on the Nasdaq Capital MarketNew York Stock Exchange, and satisfactory evidence of which such actions shall have been provided to the Representatives.
(j) On At the Effective DateExecution Time, the Company shall have delivered furnished to the Representatives executed copies a letter substantially in the form of Exhibit C hereto from (i) each officer and director of the Securities Assignment AgreementCompany (other than ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇), (ii) each officer of the Founder’s Purchase AgreementManager, the Warrant Subscription Agreement ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and the Administrative Services Agreement. On or prior ▇▇▇▇▇▇ ▇▇ ▇▇▇▇, and (iii) SPT Investment, LLC, in each case addressed to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights AgreementRepresentatives.
(k) At least one Business Day prior to the Closing DateExecution Time, the Sponsor Company shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(g) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery furnished to the Representatives on a letter substantially in the applicable Option Closing Date form of the following:
Exhibit D hereto from (i) a certificate signed by the Chief Executive Officer Manager and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date;
(ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof;
(iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof;
(iv) a letter dated the Option Closing Date▇▇, in form and substance satisfactory each case addressed to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and
(v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. 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 Ropes Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇, ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. -▇▇▇▇▇, unless otherwise indicated herein, on the Closing Date.
Appears in 2 contracts
Sources: Underwriting Agreement (Starwood Property Trust, Inc.), Underwriting Agreement (Starwood Property Trust, Inc.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any Option Closing Datesettlement date pursuant to Section 3 hereof, 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 to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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 Company shall have requested and caused Weil, Gotshal & ▇▇▇▇▇▇ Lovells US LLP, counsel for the Company, to have furnished to the Representatives its opinions their opinion and negative assurance letter, each dated the Closing Date and addressed to the Representatives, substantially in a the form reasonably acceptable agreed by such counsel and the Underwriters.
(i) The Company shall have requested and caused ▇▇▇▇▇▇ Hall & ▇▇▇▇▇▇▇ LLP, intellectual property counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, substantially in the form agreed by such counsel and the Underwriters.
(cii) The Company shall have requested and caused ▇▇▇▇▇ Lovells US LLP, intellectual property counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, substantially in the form agreed by such counsel and the Underwriters.
(d) The Representatives shall have received from Ropes ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, each dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory ProspectusDisclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives 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.
(de) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer principal executive officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined reviewed the Registration Statement each Preliminary ProspectusStatement, the Disclosure Package, Final Prospectus and any amendment supplements or supplement amendments thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(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 of the most recent financial statements included in the Statutory Prospectus Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(ef) The Company shall have requested and caused KPMG Ernst & Young LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, lettersletters (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from June 29, 2020 (date of inception) through July 24, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included substantially in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply form as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.Exhibit B.
(fg) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus ) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (ef) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) ), earnings, business or prospects properties of the CompanyCompany and the 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 Statutory Prospectus Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(gh) Prior to the Closing Date, the Company shall have furnished to the Representatives such further customary information, certificates and documents as the Representatives may reasonably request.
(h) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(i) The Securities shall be duly have been listed subject to notice of issuance and admitted and authorized for trading on the Nasdaq Capital Global Select Market, and satisfactory evidence of which such actions shall have been provided to the Representatives.
(j) On At the Effective DateExecution Time, the Company shall have delivered furnished to the Representatives executed copies a letter substantially in the form of Exhibit A-1 hereto from each officer and director of the Securities Assignment Agreement, Company and each holder of capital stock of the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or Company listed on Exhibit A-2 hereto prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement.
(k) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(g) date hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date;
(ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof;
(iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory addressed to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and
(v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. 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 Ropes ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇., ▇▇▇ ▇▇▇▇Menlo Park, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated hereinCA 94025, on the Closing Date.
Appears in 2 contracts
Sources: Underwriting Agreement (TESARO, Inc.), Underwriting Agreement (TESARO, Inc.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any Option Closing Datesettlement date pursuant to Section 3 hereof, 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 to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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 Company shall have requested and caused Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representatives its opinions and negative assurance letter, each dated the Closing Date or the settlement date, as the case may be, and addressed to the Representatives, in a form reasonably acceptable satisfactory to the Representatives.
(c) The Company shall have requested and caused ▇▇▇▇▇▇ and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date or the settlement date, as the case may be, and addressed to the Representatives, in a form satisfactory to the Representatives.
(d) The Representatives shall have received from Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, each dated the Closing Date or the settlement date, as the case may be, and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives 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.
(de) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing DateDate or the settlement date, as the case may be, to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date such date with the same effect as if made on the Closing Date such date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Datesuch 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 of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(ef) The Company shall have requested and caused KPMG Withum to have furnished to the Representatives, at the Execution Time and at the Closing DateDate or the settlement date, as the case may be, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from June 29August 27, 2020 (date of inception) through July 24September 9, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(fg) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(gh) Prior to the Closing DateDate or the settlement date, as the case may be, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(hi) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(ij) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, New York Stock Exchange satisfactory evidence of which shall have been provided to the Representatives.
(jk) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Subscription Agreement, the Warrant Purchase Agreement, the Insider Letters and Letter, the Registration Rights Agreement and the Services Agreement.
(kl) At least one Business Day prior to the Closing DateDate or the settlement date, as the case may be, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be wired to the Company and the Company shall direct the trustee to deposit such funds into the Trust Account and to hold such funds in the Trust Account such that the cumulative amount deposited into the Trust AccountAccount as of such Closing Date or settlement date shall equal the product of the number of Units sold in the Offering as of such Closing Date or settlement date and the public offering price per Unit as set forth on the cover of the Prospectus.
(lm) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(g5(ii) hereof shall have been issued as of the Closing DateDate or the settlement date, as the case may be, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date;
(ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof;
(iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and
(v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. 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 Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇, unless otherwise indicated herein, on the Closing Date.
Appears in 2 contracts
Sources: Underwriting Agreement (Fortress Capital Acquisition Corp), Underwriting Agreement (Fortress Capital Acquisition Corp)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any Option Closing Datesettlement date pursuant to Section 3 hereof, 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 to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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 Company shall have requested and caused Weil, Gotshal Winston & ▇▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representatives Representative its opinions and (including negative assurance letter, each statements) dated the Closing Date and addressed to the Representatives, Representative in a form reasonably and substance acceptable to the RepresentativesRepresentative.
(c) The Representatives Company shall have requested and caused ▇▇▇▇▇▇ and Calder, Cayman Islands counsel for the Company, to have furnished to the Representative its opinions dated the Closing Date and addressed to the Representative in form and substance acceptable to the Representative.
(d) The Representative shall have received from Ropes ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letter, each dated the Closing Date and addressed to the RepresentativesRepresentative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives Representative 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.
(de) The Company shall have furnished to the Representatives Representative a certificate of the Company, signed by the Chief Executive Officer and the principal financial or accounting officer Chief Financial Officer of the Company, dated the Closing Date, to the effect that the signers signer of such certificate have has carefully examined the Registration Statement Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, as well as each road show used in connection with the Offering, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(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 of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(ef) The Company shall have furnished to the Representative a certificate signed by the Secretary of the Company, dated the Closing Date, certifying (i) that the Charter is true and complete, has not been modified and is in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all correspondence between the Company or its counsel and the Commission, and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(g) The Company shall have requested and caused KPMG WithumSmith+▇▇▇▇▇ to have furnished to the RepresentativesRepresentative, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the RepresentativesRepresentative, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from June 29May 13, 2020 (date of inception) through July 24June 17, 2020, provided that the cutoff date shall not be more than two business days Business Days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e(g) include any supplement thereto at the date of the letter.
(fh) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e(g) of this Section 6 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) ), earnings, business or prospects properties of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the RepresentativesRepresentative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(g) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(hi) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(ij) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital MarketNew York Stock Exchange, satisfactory evidence of which shall have been provided to the RepresentativesRepresentative.
(jk) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives Representative executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and Founder’s Purchase Agreement, the Registration Rights Agreement, the Services Agreement, the Warrant Subscription Agreement and the Insider Letters.
(kl) At least one (1) Business Day prior to the Closing Date, the Sponsor shall have caused certain proceeds from the purchase price for sale of the Private Placement Warrants to be deposited into the Trust Account.
(lm) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives Representative pursuant to Section 5(g5(ii) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date;
(ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof;
(iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and
(v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the RepresentativesRepresentative. 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 Ropes ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Sources: Underwriting Agreement (Broadstone Acquisition Corp.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any Option Closing Datesettlement date pursuant to Section 3 hereof, 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 to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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 Company shall have requested and caused Weil▇▇▇▇, Gotshal Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representatives its opinions and negative assurance letter, each dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(c) The Company shall have requested and caused ▇▇▇▇▇▇ and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(d) The Representatives shall have received from Ropes Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, each dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives 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.
(de) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement 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 the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(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 of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(ef) The Company shall have requested and caused KPMG Withum to have furnished to the Representatives, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from June 29[•], 2020 2017 (date of inception) through July 24[•], 20202017, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (ef) include any supplement thereto at the date of the letter.
(fg) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (ef) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(gh) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(hi) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(ij) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital MarketNew York Stock Exchange, satisfactory evidence of which shall have been provided to the Representatives.
(jk) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, Securities Assignment Agreement, the Warrant Agreement, each Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust AgreementForward Purchase Agreements, the Warrant Subscription Agreement, the Insider Letters and Letter, the Registration Rights Agreement and the Services Agreement.
(kl) At least one Business Day prior to the Closing Date, the Sponsor Sponsors shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(lm) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(g5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date;
(ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof;
(iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and
(v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. 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 Ropes Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇▇, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any Option Closing Datesettlement date pursuant to Section 3 hereof, 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 to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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 Company shall have requested and caused Weil, Gotshal ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representatives Representative its opinions and negative assurance letter, each dated the Closing Date and addressed to the Representatives, Representative in a form reasonably and substance acceptable to the RepresentativesRepresentative.
(c) The Representatives Company shall have requested and caused ▇▇▇▇▇▇ and Calder, Cayman Islands counsel for the Company, to have furnished to the Representative its opinions dated the Closing Date and addressed to the Representative in form and substance acceptable to the Representative.
(d) The Representative shall have received from Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, each dated the Closing Date and addressed to the RepresentativesRepresentative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives Representative 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.
(de) The Company shall have furnished to the Representatives Representative a certificate of the Company, signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers signer of such certificate have has carefully examined the Registration Statement Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, as well as each road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(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 of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(ef) The Company shall have furnished to the Representative a certificate signed by the Secretary or Assistant Secretary of the Company, dated the Closing Date, certifying (i) that the Amended and Restated Memorandum and Articles of Association of the Company are true and complete, have not been modified and are in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all correspondence between the Company or its counsel and the Commission, and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(g) The Company shall have requested and caused KPMG Withum to have furnished to the RepresentativesRepresentative, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the RepresentativesRepresentative, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review an audit of the audited financial statements of the Company for the period from June 29January 8, 2020 2021 (date of inception) through July 24January 18, 20202021, provided that the cutoff date shall not be more than two business days Business Days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and;
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation; and
(iii) statements as to such other matters incident to the transaction contemplated hereby as the Representative may reasonably request. References to the Prospectus in this paragraph (eg) include any supplement thereto at the date of the letter.
(fh) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (eg) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) ), earnings, business or prospects properties of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the RepresentativesRepresentative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(g) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(hi) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(ij) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital MarketNew York Stock Exchange, satisfactory evidence of which shall have been provided to the RepresentativesRepresentative.
(jk) On the Effective Date, the The Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives Representative (i) executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement, the Services Agreement and the Insider Letters on the Closing Date and (ii) executed copies of the Founder’s Purchase Agreement and the Private Placement Warrants Purchase Agreement on the Effective Date.
(kl) At least one (1) Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(lm) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives Representative pursuant to Section 5(g5(ii) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date;
(ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof;
(iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and
(v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the RepresentativesRepresentative. 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 Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Shareholders contained herein as of the Execution Time, the Closing Date and any Option Closing Datesettlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company and the Selling Shareholders made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Shareholders of its their respective obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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 Company shall have requested and caused Weil, Gotshal & ▇▇▇▇▇▇▇ Coie LLP, counsel for the Company, to have furnished to the Representatives its opinions and negative assurance letterRepresentative their opinion, each dated the Closing Date and addressed to the RepresentativesRepresentative, in a form reasonably acceptable satisfactory to the RepresentativesRepresentative.
(c) The Representatives Selling Shareholders shall have requested and caused ▇▇▇▇▇▇ LLP, counsel for the Selling Shareholders, to have furnished to the Representative their opinion dated the Closing Date and addressed to the Representative, in a form satisfactory to the Representative.
(d) The Representative shall have received from Ropes Fenwick & ▇▇▇▇ West LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, each dated the Closing Date and addressed to the RepresentativesRepresentative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory ProspectusDisclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives Representative may reasonably require, and the Company and each Selling Shareholder 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 Company shall have furnished to the Representatives Representative a certificate of the Company, signed by the Chief Executive Officer principal executive officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary ProspectusStatement, the Disclosure Package, the Final Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(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 of the most recent financial statements included in the Statutory Prospectus Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(ef) Each Selling Shareholder shall have furnished to the Representative a certificate, signed by such Selling Shareholder, dated the Closing Date, to the effect that the representations and warranties of such Selling Shareholder in this Agreement are true and correct in all material respects on and as of the Closing Date to the same effect as if made on the Closing Date.
(g) The principal financial officer of the Company shall have furnished the Representative, at the Execution Time and at the Closing Date, certificates, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representative, containing statements and information with respect to certain information contained in the Disclosure Package and the Final Prospectus.
(h) The Company shall have requested and caused KPMG Ernst & Young LLP to have furnished to the RepresentativesRepresentative, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from June 29, 2020 (date of inception) through July 24, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:Representative.
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus ) and the Final Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (ef) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) ), earnings, business or prospects properties of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the RepresentativesRepresentative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(gj) Prior to the Closing Date, the Company and the Selling Shareholders shall have furnished to the Representatives Representative such further information, certificates and documents as the Representatives Representative may reasonably request.
(hk) FINRA shall not have raised any objection with respect to At the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(i) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(j) On the Effective DateExecution Time, the Company shall have delivered furnished to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement.
(k) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(g) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date;
(ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof;
(iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof;
(iv) Representative a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form of Exhibit A hereto from each officer and substance as director of the letter furnished Company (including any estate or charitable entities affiliated with such officers or directors) each Selling Shareholder addressed to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and
(v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option SecuritiesRepresentative. 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, negative assurance letters opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the RepresentativesRepresentative. Notice of such cancellation shall be given to the Company and each Selling Shareholder 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 Ropes Fenwick & ▇▇▇▇ West LLP, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇ ▇▇▇ ▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Sources: Underwriting Agreement (Zillow Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any Option Closing Datesettlement date pursuant to Section 3 hereof, 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 to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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 Company shall have requested and caused Weil, Gotshal ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representatives its opinions opinion and negative assurance letter, each letter dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(c) The Representatives shall have received from Ropes & ▇▇▇▇ Sidley Austin LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letter, each letter dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives 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 Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing DateDate or settlement date (as applicable), to the effect that the signers of such certificate have carefully examined the Registration Statement Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, as well as any Written Testing-the-Waters Communications and each road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the such Closing Date or settlement date (as applicable) with the same effect as if made on the Closing Date or settlement date (as applicable), and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the such Closing DateDate or settlement date (as applicable);
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued 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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Registration Statement, the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(e) The Company shall have furnished to the Representatives a certificate signed by the signed by the Chief Executive Officer of the Company, dated the Closing Date, certifying (i) that the Amended and Restated Certificate of Incorporation and bylaws of the Company are true and complete, have not been modified and are in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all written correspondence between the Company or its counsel and the Commission, and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(f) The Company shall have requested and caused KPMG ▇▇▇▇▇▇ to have furnished to the Representatives, at the Execution Time and at the Closing DateDate or settlement date (as applicable), comfort letters, dated respectively as of the Execution Time and as of the Closing DateDate or settlement date (as applicable), in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for included in the period from June 29Registration Statement, 2020 (date of inception) through July 24, 2020, Statutory Prospectus and Prospectus; provided that the cutoff date shall not be more than two business days Business Days prior to such Execution Time or Closing DateDate or settlement date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (ef) include any supplement thereto at the date of the letter.
(fg) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Registration Statement, the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, which is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(gh) Prior to the Closing DateDate or settlement date (as applicable), the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(hi) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(ij) The Securities shall be duly listed listed, subject to notice of issuance issuance, on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(jk) On the Effective Closing Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Securities Subscription Agreement, the Warrant Purchase Agreement, the Insider Letters Letter, the Administrative Services Agreement and the Registration Rights Agreement.
(kl) At least one Business Day prior to the Closing DateDate or settlement date (as applicable), the Sponsor Company shall have caused the applicable purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(lm) No order preventing or suspending the sale of the Units Securities in any jurisdiction designated by the Representatives pursuant to Section 5(g5(ii) hereof shall have been issued as of the Closing DateDate or settlement date (as applicable), and no proceedings for that purpose shall have been instituted or shall have been threatened.
(mn) The several obligations On or before the date of this Agreement, the Representatives shall have received a certificate satisfying the beneficial ownership due diligence requirements of the Underwriters to purchase Option Securities hereunder are subject to Financial Crimes Enforcement Network (“FinCEN”) from the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date;
(ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof;
(iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof;
(iv) a letter dated the Option Closing Date, Company in form and substance reasonably satisfactory to the Representatives, from KPMG substantially in the same form and substance along with such additional supporting documentation as the letter furnished to Representatives have requested in connection with the Underwriters pursuant to Section 6(e) hereof; provided that verification of the cutoff date shall not be more than two business days prior to such Option Closing Date; and
(v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securitiesforegoing certificate. 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, negative assurance letters opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled cancelled at, or at any time prior to, the Closing Date by the Representatives. 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 Ropes & ▇▇▇▇ in electronic format to Sidley Austin LLP, counsel for the Underwriters, at Attention: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇ at ▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇, unless otherwise indicated herein, on the Closing DateDate or settlement date (as applicable).
Appears in 1 contract
Sources: Underwriting Agreement (Focus Impact Acquisition Corp.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any Option Closing Datesettlement date pursuant to Section 3 hereof, 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 to the following additional conditions:
(a) The Prospectus, and any supplement thereto, shall have been filed in the manner and within the time period required by Rule 424(b); 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 Company shall have requested and caused WeilGreenberg Traurig, Gotshal P.A., Greenberg Traurig, LLP, Andrews & K▇▇▇▇ ▇▇▇ and Ballard Spah▇, ▇▇▇▇▇▇s & ▇▇▇▇rsol LL▇, ▇▇▇▇ LLP, counsel co▇▇▇▇▇ for the Company▇▇▇▇▇▇▇, to have furnished to ▇▇ ▇▇▇▇ ▇▇▇▇▇she▇ ▇▇ ▇▇▇ Representatives the Representatives its opinions and negative assurance letteropinions, each dated the Closing Date and addressed to the RepresentativesRepresentatives and reasonably satisfactory in form and substance to counsel for the Underwriters, to the effect that:
(i) each of the Company and the Subsidiaries which directly or indirectly holds real property (whether by fee ownership or lease) for the purpose of leasing to third parties has been duly incorporated or formed, as applicable, and is validly existing as a corporation, limited partnership or limited liability company in good standing under the laws of the jurisdiction in which it is chartered or formed, with full corporate, partnership or limited liability company power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Prospectus, and is duly qualified to do business as a foreign corporation, partnership or limited liability company and is in good standing under the laws of each jurisdiction which requires such qualification wherein it owns or leases material properties or conducts material business and where the failure to be so qualified would, individually or in the aggregate, have a material adverse effect on the financial condition, 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 Prospectus; notwithstanding the foregoing, the Company is duly qualified to do business as a foreign corporation and is in good standing under the laws of Florida and Texas;
(ii) all the outstanding shares of capital stock, partnership interests, limited liability company interests or other equivalent equity interest of each Subsidiary which directly or indirectly holds real property (whether by fee ownership or lease) for the purpose of leasing to third parties have been duly authorized and validly issued and are fully paid and nonassessable, as applicable, and all outstanding shares of capital stock, partnership interests, limited liability company interests or other equivalent equity interest of such Subsidiaries are owned by the Company either directly or through wholly owned Subsidiaries;
(iii) the Company's authorized equity capitalization is as set forth in the Prospectus; the capital stock of the Company conforms in all material respects to the description thereof contained in the Prospectus; the outstanding shares of Common Stock have been duly authorized and validly issued and are fully paid and nonassessable; the Securities have been duly and validly authorized, and, when issued and delivered to and paid for by the Underwriters pursuant to this Agreement, will be validly issued, fully paid and nonassessable; the certificates for the Securities are in valid and sufficient form; the holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Securities except for such rights as have been effectively waived;
(iv) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its Subsidiaries or its or their property of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required;
(v) the statements included or incorporated by reference in the Prospectus under the captions "Material Federal Income Tax Considerations", "Description of Common and Preferred Stock " and "Risk Factors" insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate in all material respects;
(vi) the Registration Statement has become effective under the Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued, no proceedings for that purpose have been instituted or threatened by the Commission and the Registration Statement as of its filing date and effective date and the Prospectus as of its filing date and as of its date (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) complied as to form in all material respects with the applicable requirements of the Act and the Exchange Act and the respective rules thereunder and the Company satisfies all conditions and requirements for the filing of the Registration Statement on Form S-3 under the Act; and such counsel has no reason to believe that on the Effective Date or the date the Registration Statement was last deemed amended the Registration Statement contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus as of its date, the Execution Time and on the Closing Date contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in a form reasonably acceptable the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion);
(vii) this Agreement has been duly authorized, executed and delivered by the Company;
(viii) the Company is not and, after giving effect to the Representativesoffering and sale of the Securities and the application of the proceeds thereof as described in the Prospectus, will not be an "investment company" as defined in the Investment Company Act of 1940, as amended;
(ix) commencing with the Company's taxable year beginning January 1, 1995, the Company has been organized in conformity with the requirements of the Code for qualification as a "real estate investment trust" for United States federal income tax purposes and its method of operation will enable it to continue to satisfy the requirements for qualification and taxation as a "real estate investment trust" under the Code;
(x) the Securities are approved for listing, subject to official notice of issuance, on the New York Stock Exchange;
(xi) no consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the performance by the Company of the transactions contemplated herein, except such as have been obtained under the Act, real estate syndication laws and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Prospectus and such other approvals (specified in such opinion) as have been obtained; PROVIDED, HOWEVER, that no opinion shall be required with respect to real estate syndication or blue sky laws;
(xii) except as set forth in the Prospectus, neither the issue and sale of the Securities by the Company, nor the consummation by the Company of any other of the transactions herein contemplated nor the fulfillment of the terms hereof will conflict with, result in a breach or violation of or imposition of any lien, charge or encumbrance upon any property or assets of the Company or its Subsidiaries pursuant to, (i) the charter or by-laws of the Company or its Subsidiaries, (ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument known to such counsel to which the Company or its Subsidiaries is a party or bound or to which its or their property is subject, or (iii) any statute, law, rule, regulation, or any judgment, order or decree known to such counsel applicable to the Company or its Subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or its Subsidiaries or any of its or their properties; and
(xiii) to such counsel's knowledge, no holders of securities of the Company have rights to the registration of such securities under the Registration Statement except for those which have been effectively waived. In rendering such opinions, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the States of Maryland, Florida, Texas, Arizona and 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 Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from Ropes Paul, Hastings, Janofsky & ▇▇▇▇ Walker LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letterop▇▇▇▇▇ ▇▇ op▇▇▇▇▇▇, each dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives 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 Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date, or any settlement date pursuant to Section 3, to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary Statement, the Prospectus, any supplements to the Prospectus and any amendment or supplement 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 the Closing Date or settlement date with the same effect as if made on the Closing Date or settlement date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing DateDate or settlement 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 's knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effectmaterial adverse effect on the 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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(e) The Company shall have requested and caused KPMG Deloitte & Touche LLP and, with respect to financial information of United Investors Realty Trust, Ernst & Young LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company accountants within the meaning of the 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 the audited financial statements of the Company for the period from June 29, 2020 (date of inception) through July 24, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules of the Company and the historical summaries of revenue and operating expenses for the properties related thereto included or incorporated by reference in the Registration Statement, the Statutory Prospectus Statement and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the Exchange Act and the related rules and regulations adopted by the Commission; and;
(ii) on the basis of carrying out certain specified procedures (but not an examination in accordance with generally accepted auditing standards) which would not necessarily reveal matters of significance with respect to the comments set forth in such letter; a reading of the minutes of the meetings of the stockholders, directors and each of the compensation committee, executive committee and audit and review committee of the Company and the Subsidiaries; and inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company and its Subsidiaries as to transactions and events subsequent to December 31, 2001, nothing came to their attention which caused them to believe that:
(1) there were any changes, at a specified date not more than five days prior to the date of the letter, in the long-term debt of the Company and its Subsidiaries or capital stock of the Company or decreases in the net assets or stockholders' equity of the Company as compared with the amounts shown on the December 31, 2001 consolidated balance sheet included or incorporated by reference in the Registration Statement and the Prospectus, or for the period from January 1, 2002 to such specified date there were any decreases, as compared with the corresponding period in the preceding quarter or the corresponding period in the prior year in net revenues or income before income taxes or in total or per share amounts of net income of the Company and its Subsidiaries, except in all instances for changes or decreases set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Representatives;
(2) the information included or incorporated by reference in the Registration Statement and Prospectus in response to Regulation S-K, Item 301 (Selected Financial Data), Item 302 (Supplementary Financial Information), Item 402 (Executive Compensation) and Item 503(d) (Ratio of Earnings to Fixed Charges) is not in conformity with the applicable disclosure requirements of Regulation S-K;
(iii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the CompanyCompany and its Subsidiaries) set forth or incorporated by reference in the Registration Statement, Statement and the Statutory Prospectus and in Exhibit 12 to the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, Registration Statement agrees with the accounting records of the CompanyCompany and its Subsidiaries, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(g) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(h) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(i) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(j) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement.
(k) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(g) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date;
(ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof;
(iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and
(v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. 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 Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein, on the Closing Date.qu
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any Option Closing DateSettlement Date pursuant to Section 3 hereof, 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 to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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 Company shall have requested and caused Weil, Gotshal & ▇▇▇▇▇▇ LLP▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇, counsel for the Company, to have furnished to the Representatives its opinions and negative assurance lettertheir opinion, each dated the Closing Date and addressed to the Representatives, in a the form attached in Annex A hereto, in form and substance reasonably acceptable satisfactory to the Representatives.
(c) The Representatives shall have received from Ropes & ▇▇▇▇▇▇▇ Procter LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, each dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory ProspectusDisclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representatives 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 Representatives shall have received from ▇▇▇▇▇ ▇▇▇▇▇ LLP, regulatory counsel to the Company, their opinion, dated the Closing Date and addressed to the Representatives, in the form attached in Annex B hereto, in form and substance reasonably satisfactory to the Representatives.
(e) The Representatives shall have received from King & Wood Mallesons, local counsel to the Company in the People’s Republic of China, their opinion, dated the Closing Date and addressed to the Representatives, in the form attached in Annex C hereto, in form and substance reasonably satisfactory to the Representatives.
(f) The Company shall have furnished to the Representatives, at the Execution Time and at the Closing Date, a certificate of the Company, signed by the Chief Financial Officer, dated respectively as of the Execution Time and as of the Closing Date, in the form attached as Exhibit B hereto.
(g) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer Chairman of the Board or the principal executive officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary ProspectusStatement, the Disclosure Package, the Prospectus and any amendment or supplement thereto, as well as each electronic roadshow used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) the Registration Statement has become effective under the Act and 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 of the most recent financial statements included or incorporated by reference in the Statutory Prospectus Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effectmaterial adverse effect on the 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 Statutory Prospectus Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(eh) The Company shall have requested and caused KPMG Ernst & Young to have furnished to the Representatives, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from June 29, 2020 (date of inception) through July 24, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:.
(i) in their opinion The Company shall have furnished to the audited financial statements Representatives, at the Execution Time, dated as of the Execution Time, a properly completed and financial statement schedules included in the Registration Statementexecuted Certification Regarding Beneficial Owners of Legal Entity Customers, the Statutory Prospectus together with copies of identifying documentation, and the Prospectus and reported on by them comply Company undertakes to provide such additional supporting documentation as to form the Representatives may reasonably request in all material respects connection with the applicable accounting requirements verification of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letterforegoing certification.
(fj) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus ) and the Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (ef) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) ), earnings, business or prospects properties of the CompanyCompany 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 Statutory Prospectus Disclosure Package and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(gk) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(h) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(il) The Securities shall be duly have been listed subject to notice of issuance and admitted and authorized for trading on the Nasdaq Capital MarketNASDAQ, and satisfactory evidence of which such actions shall have been provided to the Representatives.
(jm) On The FINRA, upon review, if any, of the Effective Dateterms of the public offering of the Securities, shall not have objected to such offering, such terms or the Underwriters’ participation in same.
(n) Prior to the Execution Time, the Company shall have delivered furnished to the Representatives executed copies a letter substantially in the form of Exhibit A hereto (the “Lock-Up Agreement”) from each officer and director of the Securities Assignment Agreement, Company listed on Schedule VI hereto addressed to the Founder’s Purchase Agreement, Representatives. The Company will use its best efforts to enforce the Warrant Subscription terms of each Lock-Up Agreement and the Administrative Services Agreement. On or prior will issue stop-transfer instructions to the Closing Date, transfer agent for the Company will deliver Common Stock with respect to any transaction or contemplated transaction that would constitute a breach of or default under the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights applicable Lock-Up Agreement.
(k) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(g) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(mo) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date;
(ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof;
(iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date Company shall not be more than two business days prior to such Option Closing Date; and
(v) such further information, certificates and documents as Representatives may reasonably request have received an objection from NASDAQ with respect to the issuance listing of such Option additional shares notification that it filed with NASDAQ in connection with the Securities. 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, negative assurance letters opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. 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 Ropes & ▇▇▇▇▇▇▇ Procter LLP, counsel for the Underwriters, at ▇The New York Times Building, ▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein(or such other place as mutually may be agreed upon), on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any Option Closing Datesettlement date pursuant to Section 3 hereof, 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 to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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 Company shall have requested and caused Weil, Gotshal & ▇▇▇▇▇▇ Proskauer Rose LLP, counsel for the Company, to have furnished to the Representatives Representative its opinions and negative assurance letter, each dated the Closing Date and any settlement date, as applicable, and addressed to the RepresentativesRepresentative, in a form reasonably acceptable to the RepresentativesRepresentative.
(c) The Representatives Company shall have requested and caused Mourant Ozannes, Cayman Islands counsel for the Company, to have furnished to the Representative its opinions dated the Closing Date and any settlement date, as applicable, and addressed to the Representative, in a form reasonably acceptable to the Representative.
(d) The Representative shall have received from Ropes Shearman & ▇▇▇▇ Sterling LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, each dated the Closing Date and any settlement date, as applicable, and addressed to the RepresentativesRepresentative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives Representative 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.
(de) The Company shall have furnished to the Representatives Representative a certificate of the Company, signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing DateDate and any settlement date, as applicable, to the effect that the signers of such certificate have carefully examined the Registration Statement Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and each “road show” as defined in Rule 433(h) of the Act used in connection with the Offering, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date such date with the same effect as if made on the Closing Date such date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Datesuch 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 of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(ef) The Company shall have requested and caused KPMG BDO to have furnished to the RepresentativesRepresentative, at the Execution Time and at the Closing DateDate and any settlement date, as applicable, letters, dated respectively as of the Execution Time and as of the Closing DateDate and any settlement date, as applicable, in form and substance satisfactory to the RepresentativesRepresentative, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from June 29March 10, 2020 2021 (date of inception) through July 24March 26, 20202021, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(fg) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the RepresentativesRepresentative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(gh) Prior to the Closing DateDate and any settlement date, as applicable, the Company shall have furnished to the Representatives Representative such further information, certificates and documents as the Representatives Representative may reasonably request.
(hi) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(ij) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital MarketNew York Stock Exchange, satisfactory evidence of which shall have been provided to the RepresentativesRepresentative.
(jk) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider Letters Letters, the Registration and Shareholder Rights Agreement and the Registration Rights Administrative Services Agreement.
(kl) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(lm) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives Representative pursuant to Section 5(g5(jj) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date;
(ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof;
(iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and
(v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the RepresentativesRepresentative. 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 Ropes Shearman & ▇▇▇▇ Sterling LLP, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Sources: Underwriting Agreement (L Catterton Latin America Acquisition Corp)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any Option Closing Datesettlement date pursuant to Section 3 hereof, 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 to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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 Company shall have requested and caused Weil, Gotshal ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLPL.L.P., counsel for the Company, to have furnished to the Representatives its opinions and negative assurance letter, each dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(c) The Representatives shall have received from Ropes ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, each dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives 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 Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing DateDate or settlement date (as applicable), to the effect that the signers of such certificate have carefully examined the Registration Statement Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, as well as each road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date or settlement date (as applicable) with the same effect as if made on the Closing Date or settlement date (as applicable) and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing DateDate or settlement date (as applicable);
(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 of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(e) The Company shall have furnished to the Representatives a certificate signed by the Secretary or Assistant Secretary of the Company, dated the Closing Date, certifying that the Amended and Restated Certificate of Incorporation and bylaws of the Company are true and complete, have not been modified and are in full force and effect, that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, copies of all correspondence between the Company or its counsel and the Commission, and as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(f) The Company shall have requested and caused KPMG WithumSmith to have furnished to the Representatives, at the Execution Time and at the Closing DateDate or settlement date (as applicable), letters, dated respectively as of the Execution Time and as of the Closing DateDate or settlement date (as applicable), in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for included in the period from June 29Registration Statement, 2020 (date of inception) through July 24, 2020Statutory Prospectus and Prospectus, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing DateDate or settlement date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (ef) include any supplement thereto at the date of the letter.
(fg) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (ef) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(gh) Prior to the Closing DateDate or settlement date (as applicable), the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(hi) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(ij) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital MarketNew York Stock Exchange, satisfactory evidence of which shall have been provided to the Representatives.
(jk) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Securities Assignment Agreement, the Forward Purchase Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider Letter, the Registration Rights Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement.
(kl) At least one Business Day prior to the Closing DateDate or settlement date (as applicable), the Sponsor Company shall have caused the applicable purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(lm) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(g5(ii) hereof shall have been issued as of the Closing DateDate or settlement date (as applicable), and no proceedings for that purpose shall have been instituted or shall have been threatened.
(mn) The several obligations On or before the date of this Agreement, the Representatives shall have received a certificate satisfying the beneficial ownership due diligence requirements of the Underwriters to purchase Option Securities hereunder are subject to Financial Crimes Enforcement Network (“FinCEN”) from the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date;
(ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof;
(iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof;
(iv) a letter dated the Option Closing Date, Company in form and substance reasonably satisfactory to the Representatives, from KPMG substantially in the same form and substance along with such additional supporting documentation as the letter furnished to Representatives have requested in connection with the Underwriters pursuant to Section 6(e) hereof; provided that verification of the cutoff date shall not be more than two business days prior to such Option Closing Date; and
(v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securitiesforegoing certificate. 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, negative assurance letters opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. 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 Ropes ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, unless otherwise indicated herein, on the Closing DateDate or settlement date (as applicable).
Appears in 1 contract
Sources: Underwriting Agreement (Spartan Energy Acquisition Corp.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any Option Closing Datesettlement date pursuant to Section 3 hereof, 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 to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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 Company shall have requested and caused Weil, Gotshal & Ellenoff G▇▇▇▇▇▇▇ & Schole LLP, counsel for the Company, to have furnished to the Representatives its opinions and (including negative assurance letter, each statements) dated the Closing Date and addressed to the Representatives, Representatives in a form reasonably and substance acceptable to the Representatives.
(c) The Company shall have requested and caused M▇▇▇▇▇ Group, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives in form and substance acceptable to the Representatives.
(d) The Representatives shall have received from Ropes D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letter, each dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives 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.
(de) The Company shall have furnished to the Representatives a certificate of the Company, signed by (i) each of the Chief Executive Officer and the principal financial or accounting officer Chief Financial Officer of the Company and (ii) the Secretary of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, as well as each road show used in connection with the Offering, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(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 of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(ef) The Company shall have furnished to the Representatives a certificate signed by the Secretary of the Company, dated the Closing Date, certifying (i) that the Charter is true and complete, has not been modified and is in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all correspondence between the Company or its counsel and the Commission, and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(g) The Company shall have requested and caused KPMG Withum to have furnished to the Representatives, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from June 29August 26, 2020 (date of inception) through July 24, 2020[·], provided that the cutoff date shall not be more than two business days Business Days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e(g) include any supplement thereto at the date of the letter.
(fh) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e(g) of this Section 6 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) ), earnings, business or prospects properties of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i(i) or (ii(ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(g) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(hi) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(ij) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital MarketNasdaq, satisfactory evidence of which shall have been provided to the Representatives.
(jk) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Registration Rights Agreement, the Services Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights AgreementLetters.
(kl) At least one (1) Business Day prior to the Closing Date, the Sponsor and HS Chronos shall have caused certain proceeds from the purchase price for sale of the Private Placement Warrants to be deposited into the Trust Account.
(lm) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(g5(ii) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date;
(ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof;
(iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and
(v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. If any of the conditions specified in this Section 6 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions, negative assurance letters opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. 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 6 shall be delivered at the office of Ropes D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇4▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, Bonds shall be subject subject, in the discretion of the Representatives, to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, date hereof and the Closing Date and any Option Closing Date, to the accuracy of the statements of the Company officers made in any certificates given pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, Prospectus Supplement relating to the Bonds shall have been filed in with the manner and Commission pursuant to Rule 424(b) and/or Rule 434 within the applicable time period required prescribed for such filing by Rule 424(b)the rules and regulations under the Act and in accordance with Section 4(a) hereof; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use part thereof shall have been issued and no proceedings proceeding for that purpose shall have been instituted initiated or threatenedthreatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to the Representatives' reasonable satisfaction.
(b) The Company Representatives shall have requested and caused Weilbe furnished with opinions, Gotshal & dated the Closing Date, of ▇▇▇▇ ▇. ▇▇▇▇▇▇ LLP▇▇, counsel for Vice President, General Counsel and Corporate Secretary of the Company, to have furnished to substantially in the Representatives its opinions and negative assurance letter, each dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives.included as Exhibit A.
(c) The Representatives shall have received from Ropes ▇▇▇▇▇▇▇, Carton & ▇▇▇▇ LLP▇▇▇▇, Chicago, Illinois, counsel for the Underwriters, such opinion or opinions and negative assurance letter, each dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale incorporation of the SecuritiesCompany, this Agreement, the validity of the Indenture, the Bonds, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives 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 Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer and the principal financial President or accounting officer any Vice President of the Company, dated the Closing Date, as to the matters set forth in clause (a) and (h) of this Section 6 and to the further effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary ProspectusStatement, the Prospectus and any amendment or supplement 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 the Closing Date with the same effect as if made on the Closing Date Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;; and
(ii) there has been no stop order suspending material adverse change in the effectiveness condition of the Company and its subsidiaries taken as a whole, financial or otherwise, or in the earnings, affairs or business prospects of the Company and its subsidiaries taken as a whole, whether or not arising in the ordinary course of business, from that set forth or contemplated by 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 of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto)Supplement.
(e) The Company Representatives shall have requested received letters from the Company's independent public accountants (dated the date of this Agreement and caused KPMG to have furnished to the Representatives, at the Execution Time and at the Closing Date, lettersrespectively, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming ) advising that (i) they are a registered independent public accounting firm that is independent with respect to the Company within the meaning of accountants as required by the Act and published rules and regulations of the Commission thereunder, (ii) in their opinion, the consolidated financial statements and supplemental schedules incorporated by reference in the Registration Statement and covered by their opinion filed with the Commission under Section 13 of the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from June 29, 2020 (date of inception) through July 24, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Exchange Act and the related published rules and regulations adopted by of the Commission; and
Commission thereunder, (iiiii) they have performed certain limited procedures, not constituting an audit, including a reading of the latest available interim financial statements of the Company and its consolidated subsidiaries, a reading of the minutes of meetings of the Board of Directors, committees thereof, and of the Shareholders, of the Company and its subsidiaries since the date of the most recent audited financial statements included or incorporated by reference in the Prospectus, inquiries of officials of the Company and its subsidiaries responsible for financial accounting matters and such other inquiries and procedures as may be specified in such letter, and on the basis of such limited review and procedures nothing came to their attention that caused them to believe that: (a) any material modifications should be made to any unaudited consolidated financial statements of the Company included or incorporated by reference in the Registration Statement or Prospectus for them to be in conformity with generally accepted accounting principles or any unaudited consolidated financial statements of the Company included or incorporated by reference in the Registration Statement or Prospectus do not comply as to form in all material respects with the applicable accounting requirements of the Exchange Act and the rules and regulations of the Commission applicable to Form 10-Q; (b) with respect to the period subsequent to the date of the most recent financial statements included or incorporated by reference in the Prospectus and except as set forth in or contemplated by the Registration Statement or Prospectus, there were any changes, at a specified date not more than five business days prior to the date of the letter, in the capital stock of the Company, increases in long-term debt or decreases in stockholders' equity or net current assets of the Company and its consolidated subsidiaries as compared with the amounts shown on the most recent consolidated balance sheet included or incorporated in the Prospectus, or for the period from the date of the most recent financial statements included or incorporated by reference in the Prospectus to such specified date there were any decreases, as compared with the corresponding period in the preceding year, in operating revenues, operating income, net income, or earnings per share of Common Stock of the Company and its subsidiaries, except in all instances for changes or decreases set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Representatives; (iv) they have carried out specified procedures as a result performed for the purpose of which they determined that comparing certain specified financial information of an accounting, financial or statistical nature and percentages (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth included or incorporated by reference in the Registration Statement, the Statutory Statement and Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” with indicated amounts in the Statutory Prospectus and the Prospectus, agrees with the financial statements or accounting records of the Company, Company and (excluding any questions of legal interpretation. References ) have found such information and percentages to be in agreement with the relevant accounting and financial information of the Company referred to in such letter in the description of the procedures performed by them and (v) on the basis of a reading of the unaudited pro forma financial information incorporated by reference in the Registration Statement and the Prospectus, carrying out certain specified procedures that would not necessarily reveal matters of significance with respect to the Prospectus comments set forth in this paragraph (e) include any supplement thereto at the date v), inquiries of certain officials of the letterCompany who have responsibility for financial and accounting matters and proving the arithmetic accuracy of the application of the pro forma adjustments to the historical amounts in the unaudited pro forma financial information, nothing came to their attention that caused them to believe that the unaudited pro forma financial information does not comply in form in all material respects with the applicable accounting requirements of Rule 11-02 of Regulation S-X or that the pro forma adjustments have not been properly applied to the historical amounts in the compilation of such information.
(f) Subsequent to the Execution Time or, if earlier, the respective dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto)Prospectus, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 which makes it impractical or inadvisable in the judgment of the Representatives to proceed with the public offering or the delivery of the Bonds on the terms and in the manner contemplated by the Prospectus.
(g) Subsequent to the date hereof, no downgrading shall have occurred, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Company's debt securities or preferred stock by any "nationally recognized statistical rating organization," as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act.
(i) Neither the Company nor any of its subsidiaries shall have sustained since the date of the latest audited financial statements included or incorporated by reference in the Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus Supplement, and (ii) since the date of this Agreement, neither the Company nor any of its subsidiaries shall have incurred any liabilities or obligations, direct or contingent, or entered into any transactions, not in the ordinary course of business, which are material to the Company and its subsidiaries, and there shall not have been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the earnings, businessgeneral affairs, management, propertiesfinancial position, assets, rights, operations, condition (financial stockholders' equity or otherwise) or prospects results of operations of the Company, whether or not arising from transactions in the ordinary course of business, except Company and its subsidiaries otherwise than as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) Supplement, the effect of which, in any such case referred to described in clause (i) or (ii) above, is, is in the sole judgment of the Representatives, Underwriters so material and adverse as to make it impractical impracticable or inadvisable to proceed with the public offering or the delivery of the Securities as Bonds on the terms and in the manner contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto)Prospectus.
(gi) No Representative shall have advised the Company that the Registration Statement or Prospectus, or any amendment or supplement thereto, contains an untrue statement of fact which in the opinion of counsel for the Underwriters is material or omits to state a fact which in the opinion of counsel for the Underwriters is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(j) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives they may reasonably request.
(h) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(i) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(j) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement.
(k) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(g) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date;
(ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof;
(iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and
(v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in required by this Agreement, or if any of the opinions, negative assurance letters opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriterstheir counsel, this Agreement and all obligations of the Underwriters hereunder may be canceled cancelled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing writing, or by telephone or facsimile telegraph confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Sources: Underwriting Agreement (Northern States Power Co /Mn/)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any Option Closing Datesettlement date pursuant to Section 3 hereof, 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 to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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 Company shall have requested and caused Weil, Gotshal & K▇▇▇▇▇▇▇ & E▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representatives its opinions and negative assurance letter, each dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(c) The Representatives shall have received from Ropes & ▇G▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letter, each dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives 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 Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Financial Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers signer of such certificate have has carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement 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 the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(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 of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(e) The Company shall have requested and caused KPMG Withum to have furnished to the Representatives, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company as of December 31, 2020 and for the period from June 29September 1, 2020 (date of inception) through July 24December 31, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(g) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(h) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(i) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital MarketNasdaq, satisfactory evidence of which shall have been provided to the Representatives.
(j) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider Letters Letters, the Registration and Shareholder Rights Agreement and the Registration Rights Administrative Services Agreement.
(k) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(g5(ii) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(m) The several obligations On or before the date of this Agreement, the Representatives shall have received a certificate satisfying the beneficial ownership due diligence requirements of the Underwriters to purchase Option Securities hereunder are subject to Financial Crimes Enforcement Network (“FinCEN”) from the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date;
(ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof;
(iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof;
(iv) a letter dated the Option Closing Date, Company in form and substance reasonably satisfactory to the Representatives, from KPMG substantially in the same form and substance along with such additional supporting documentation as the letter furnished to Representatives have requested in connection with the Underwriters pursuant to Section 6(e) hereof; provided that verification of the cutoff date shall not be more than two business days prior to such Option Closing Date; and
(v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securitiesforegoing certificate. 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, negative assurance letters opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. 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 Ropes & ▇G▇▇▇ LLP, counsel for the Underwriters, at ▇1▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇P▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Sources: Underwriting Agreement (One Equity Partners Open Water I Corp.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Shareholders contained herein as of the Execution Time, the Closing Date and any Option Closing Datesettlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company and the Selling Shareholders made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Shareholders of its their respective obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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 Company shall have requested and caused Weil, Gotshal & ▇▇▇▇▇▇▇ Coie LLP, counsel for the Company, to have furnished to the Representatives its opinions and negative assurance letterRepresentative their opinion, each dated the Closing Date and addressed to the RepresentativesRepresentative, in a form reasonably acceptable satisfactory to the RepresentativesRepresentative.
(c) The Representatives Selling Shareholders shall have requested and caused (i) DLA Piper LLP (US), counsel for the Selling Shareholders and (ii) ▇▇▇▇▇▇ and ▇▇▇▇▇▇, Cayman Islands counsel for the Selling Shareholder that is a Cayman Islands exempted limited partnership, to have furnished to the Representative their opinion dated the Closing Date and addressed to the Representative, in a form satisfactory to the Representative.
(d) The Representative shall have received from Ropes Fenwick & ▇▇▇▇ West LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, each dated the Closing Date and addressed to the RepresentativesRepresentative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory ProspectusDisclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives Representative may reasonably require, and the Company and each Selling Shareholder 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 Company shall have furnished to the Representatives Representative a certificate of the Company, signed by the Chief Executive Officer principal executive officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary ProspectusStatement, the Disclosure Package, the Final Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(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 of the most recent financial statements included in the Statutory Prospectus Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(ef) Each Selling Shareholder shall have furnished to the Representative a certificate, signed by (or on behalf of) such Selling Shareholder, dated the Closing Date, to the effect that the representations and warranties of such Selling Shareholder in this Agreement are true and correct in all material respects on and as of the Closing Date to the same effect as if made on the Closing Date.
(g) The principal financial officer of the Company shall have furnished the Representative, at the Execution Time and at the Closing Date, certificates, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representative, containing statements and information with respect to certain information contained in the Disclosure Package and the Final Prospectus.
(h) The Company shall have requested and caused KPMG Ernst & Young LLP to have furnished to the RepresentativesRepresentative, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from June 29, 2020 (date of inception) through July 24, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:Representative.
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus ) and the Final Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (eh) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) ), earnings, business or prospects properties of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the RepresentativesRepresentative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(gj) Prior to the Closing Date, the Company and the Selling Shareholders shall have furnished to the Representatives Representative such further information, certificates and documents as the Representatives Representative may reasonably request.
(hk) FINRA shall not have raised any objection with respect to At the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(i) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(j) On the Effective DateExecution Time, the Company shall have delivered furnished to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement.
(k) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(g) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date;
(ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof;
(iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof;
(iv) Representative a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form of Exhibit A hereto from each officer and substance as director of the letter furnished Company (including any estate or charitable entities affiliated with such officers or directors) and each Selling Shareholder addressed to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and
(v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option SecuritiesRepresentative. 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, negative assurance letters opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the RepresentativesRepresentative. Notice of such cancellation shall be given to the Company and each Selling Shareholder 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 Ropes Fenwick & ▇▇▇▇ West LLP, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇ ▇▇▇ ▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Sources: Underwriting Agreement (Zillow Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company Fund and the Advisers contained herein as of the Execution Time, the Closing Date and any Option Closing Datesettlement date pursuant to Section 4 hereof, to the accuracy of the statements of the Company Fund and the Advisers made in any certificates pursuant to the provisions hereof, to the performance by the Company Fund or the Advisers of its their obligations hereunder and to the following additional conditions:
(a) The Prospectus, Prospectus and any supplement thereto, supplements thereto have been filed in the manner and within the time period required by Rule 424(b)497; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use or order pursuant to Section 8(e) of the 1940 Act shall have been issued and no proceedings for that purpose shall have been instituted or threatenedthreatened by the Commission, and any request of the Commission for additional information (to be included in the Registration Statement or Prospectus or otherwise) shall have been complied with in all material respects.
(b) The Company Fund shall have requested and caused Weil, Gotshal ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the CompanyFund, to have furnished to the Representatives Representative its opinions and negative assurance letteropinion, each dated the Closing Date and addressed to the RepresentativesRepresentative, in a form reasonably acceptable to the Representativeseffect set forth in Exhibit A. 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 New York or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of ▇▇▇▇▇▇▇ LLP or other counsel of good standing whom they believe to be reliable and who are reasonably satisfactory to counsel for the Underwriters, and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Fund and public officials. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date.
(c) You shall have received on the Closing Date an opinion of ▇▇▇▇▇ J, ▇▇▇▇▇, Managing Director and General Counsel of the Manager, dated the Closing Date and addressed to the Representative, to the effect set forth in Exhibit B. In rendering such opinion, such counsel may rely as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Manager and public officials. References to the Prospectus in this paragraph (c) shall also include any supplements thereto at the Closing Date.
(d) You shall have received on the Closing Date an opinion of counsel for LaSalle Securities U.S., such counsel to be reasonably acceptable to the Representative, dated the Closing Date and addressed to the Representative, to the effect set forth in Exhibit C. In rendering such opinion, such counsel may rely to the extent they deem proper and as specified in such opinion upon the opinion of counsel of good standing whom they believe to be reliable and who are reasonably satisfactory to counsel for the Underwriters and as to matters of fact, to the extent they deem proper, on certificates of responsible officers of LaSalle Securities U.S. and public officials. References to the Prospectus in this paragraph (d) shall also include any supplements thereto at the Closing Date.
(e) You shall have received on the Closing Date an opinion of counsel for LaSalle Securities B.V., such counsel to be reasonably acceptable to the Representative, dated the Closing Date and addressed to the Representative, to the effect set forth in Exhibit D. In rendering such opinion, such counsel may rely to the extent they deem proper and as specified in such opinion upon the opinion of counsel of good standing whom they believe to be reliable and who are reasonably satisfactory to counsel for the Underwriters and as to matters of fact, to the extent they deem proper, on certificates of responsible officers of LaSalle Securities B.V. and public officials. References to the Prospectus in this paragraph (e) shall also include any supplements thereto at the Closing Date.
(f) The Representatives Representative shall have received from Ropes ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, each dated the Closing Date and addressed to the RepresentativesRepresentative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, Preliminary Prospectus and the Prospectus (together with any supplement thereto) and other related matters as the Representatives Representative may reasonably require, and the Company Fund and the Advisers shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(dg) The Company Each of the Fund and the Advisers shall have furnished to the Representatives Representative a certificate of the Companycertificate, signed by the Chief Chairman of the Board or the President or Executive Officer Vice President and the principal financial or accounting officer of each of the CompanyFund and the Advisers, as the case may be, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement Statement, each Preliminary Prospectus and the Prospectus, the Prospectus and any amendment amendments or supplement thereto, supplements thereto and this Agreement and that:
(i) the The representations and warranties of the Company Fund or the Advisers, as the case may be, in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has Fund or the Advisers, as the case may be, have complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no 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 CompanyFund’s or each of the Adviser’s knowledge, as the case may be, threatened; and
(iii) since Since the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) (with respect to the certificate of the Fund) and since the date of the Prospectus (exclusive of any supplements thereto) (with respect to the certificate of the Advisers), there has been no Material Adverse Effectmaterial adverse effect on the condition (financial or otherwise), prospects, results of operations, business or properties of the Fund or each of the Advisers, as the case may be, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory each Preliminary Prospectus and the Prospectus (exclusive of any supplement thereto).
(eh) The Company Fund shall have requested and caused KPMG Deloitte & Touche LLP to have furnished to the RepresentativesRepresentative, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the RepresentativesRepresentative, confirming that they are a it is an independent registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange 1940 Act and the applicable rules Rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from June 29, 2020 (date of inception) through July 24, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, Regulations and stating in effect that:
(i) in their its opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Final Preliminary Prospectus and the Prospectus and reported on by them it comply as to form in all material respects with the applicable accounting requirements of the Act, the 1940 Act and the related rules Rules and regulations adopted by the CommissionRegulations; and
and (ii) they have it has performed certain other specified procedures as a result of which they it determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the CompanyFund) set forth in the Registration Statement, the Statutory each Preliminary Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “CapitalizationSummary of Fund Expenses” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the CompanyFund, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (eh) include any supplement thereto at the date of the letter.
(fi) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus ) and the Prospectus (exclusive of any supplement thereto), there shall not have been (ix) any change or decrease specified in the letter or letters referred to in paragraph (eh) of this Section 6 7 or (iiy) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) ), prospects, earnings, business or prospects properties of the CompanyFund and each of the Advisers, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory each Preliminary Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole reasonable judgment of the RepresentativesRepresentative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory each Preliminary Prospectus and the Prospectus (exclusive of any supplement thereto).
(gj) The Securities shall have been listed and admitted and authorized for trading on the NYSE, and reasonably satisfactory evidence of such actions shall have been provided to the Representative.
(k) Prior to the Closing Date, the Company Fund and the Advisers shall have furnished to the Representatives Representative such reasonable further information, certificates and documents as the Representatives Representative may reasonably request.
(h) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(i) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(j) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement.
(k) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(g) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date;
(ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof;
(iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and
(v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. If any of the conditions specified in this Section 6 7 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions, negative assurance letters opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the RepresentativesRepresentative. Notice of such cancellation shall be given to the Company Fund in writing or by telephone or facsimile confirmed in writing. .
(m) The documents required to be delivered by this Section 6 7 shall be delivered at the office of Ropes ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Sources: Underwriting Agreement (Seligman LaSalle International Real Estate Fund, Inc.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities Units and the Option SecuritiesUnits, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any Option Closing Datesettlement date pursuant to Section 3 hereof, 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 to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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 Company shall have requested and caused Weil, Gotshal D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representatives its opinions and negative assurance letter, each dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(c) The Company shall have requested and caused M▇▇▇▇▇ and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, in a form satisfactory to the Representatives.
(d) The Representatives shall have received from Ropes & ▇G▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, each dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives 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.
(de) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Financial Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers signer of such certificate have has carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement 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 the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(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 of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(ef) The Company shall have furnished to the Representatives a certificate signed by the Secretary or the Assistant Secretary of the Company, dated the Closing Date, certifying (i) that the Amended and Restated Memorandum and Articles of Association of the Company are true and complete, have not been modified and are in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all correspondence between the Company or its counsel and the Commission, and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(g) The Company shall have requested and caused KPMG Withum to have furnished to the Representatives, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company as of January 25, 2021 and for the period from June 29November 20, 2020 (date of inception) through July 24January 25, 20202021, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (eg) include any supplement thereto at the date of the letter.
(fh) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (eg) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(gi) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(hj) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(ik) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital MarketNYSE, satisfactory evidence of which shall have been provided to the Representatives.
(jl) On or prior to the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Private Placement Warrant Subscription Purchase Agreement, the Insider Letter, the Registration Rights Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement.
(km) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust AccountAccount such that the cumulative amount deposited into the Trust Account as of such Closing Date or such settlement date, as applicable, shall equal the product of the number of Units issued in the offering as of such Closing Date or such settlement date, as applicable, and the public offering price per Unit as net forth on the cover of the Prospectus.
(ln) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(g) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date;
(ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof;
(iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and
(v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. 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 Ropes & ▇G▇▇▇ LLP, counsel for the Underwriters, at ▇1▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: P▇▇▇ ▇. ▇▇▇▇▇ and C▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Sources: Underwriting Agreement (Constellation Acquisition Corp I)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any Option Closing Date, 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 to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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 Company shall have requested and caused Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representatives its opinions and negative assurance letter, each dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(c) The Representatives shall have received from Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letter, each dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives 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 Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement 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 the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(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 of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(e) The Company shall have requested and caused KPMG to have furnished to the Representatives, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from June 2925, 2020 (date of inception) through July 2414, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(g) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(h) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(i) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(j) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement.
(k) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(g) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date;
(ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof;
(iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and
(v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. 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 Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Firm Securities and the Option Optional Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any Option Closing Datesettlement date pursuant to Section 4 hereof, 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 hereunder, including, if applicable, the last sentence of Section 4(c) hereof, and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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 Company shall have requested and caused Weil, Gotshal ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representatives its opinions and negative assurance letter, each dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(c) The Company shall have requested and caused ▇▇▇▇▇▇ & Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(d) The Representatives shall have received from Ropes Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, each dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Offered Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives 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.
(de) The Company shall have furnished to the Representatives a certificate of the Company, signed by the its Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and each “road show” as defined in Rule 433(h) of the Act used in connection with the Offering, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date such date with the same effect as if made on the Closing Date such date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Datesuch 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 of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(ef) The Company shall have furnished to the Representatives a certificate signed by the Secretary or Assistant Secretary of the Company, dated the Closing Date, certifying, among other things, (i) that the amended and restated memorandum and articles of association of the Company are true and complete, have not been modified and are in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all correspondence between the Company or its counsel and the Commission, and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(g) The Company shall have requested and caused KPMG ▇▇▇▇▇▇ to have furnished to the Representatives, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from June 29, 2020 (date of inception) through July 24, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(fh) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (eg) of this Section 6 7 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Offered Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(gi) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(hj) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(ik) The Offered Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(jl) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider Letter, the Registration Rights Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement.
(km) At least one (1) Business Day prior to the Closing DateDate or the settlement date, as applicable, the Sponsor Company shall have caused proceeds from the purchase price for sale of the Private Placement Warrants to be deposited into the Trust AccountAccount such that the cumulative amount deposited into the Trust Account as of such Closing Date or settlement date shall equal the product of the number of Units issued in the public offering as of such Closing Date or settlement date and the public offering price per Unit as set forth on the cover of the Prospectus.
(ln) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(g6(ii) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date;
(ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof;
(iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and
(v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. If any of the conditions specified in this Section 6 7 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions, negative assurance letters opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. 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 7 and, if applicable, the last sentence of Section 4(c), shall be delivered at the office of Ropes Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein, on the Closing DateDate or the applicable settlement date, as applicable.
Appears in 1 contract
Sources: Underwriting Agreement (Silver Spike Acquisition Corp II)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any Option Closing Datesettlement date pursuant to Section 3 hereof, 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 to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act shall have been filed with the SEC 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 Company shall have requested and caused Weil▇▇▇▇▇▇▇ Procter LLP, Gotshal U.S. counsel for the Company, and ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP▇▇, British Virgin Islands counsel for the Company, to have each furnished to the Representatives its opinions and negative assurance letteran opinion, each dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable and substance satisfactory to the Representatives.
(c) The Representatives shall have received from Ropes ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, U.S. counsel for the Underwriters, Appleby, British Virgin Islands counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, each dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory ProspectusDisclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives 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 Company shall have furnished to the Representatives 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 the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary ProspectusStatement, the Disclosure Package, the Final Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(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 of the most recent financial statements included in the Statutory Prospectus Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(e) The Company shall have requested and caused KPMG LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent together with signed or reproduced copies of such letters for each of the other Underwriters containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements and certain financial information of the Company for the period from June 29, 2020 (date of inception) through July 24, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time and its subsidiaries contained or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included incorporated by reference in the Registration Statement, the Statutory Preliminary Prospectus and the Prospectus Final Prospectus; provided, that the letter delivered on the Closing Date or the settlement date, as the case may be, shall use a “cut-off” date no more than three Business Days prior to such Closing Date or the settlement date, as applicable.
(f) The Company shall have requested and reported on by them comply caused CRI to have furnished to the Representatives, at the Execution Time and at the Closing Date, letters, dated respectively as to form in all material respects with the applicable accounting requirements of the Act Execution Time and as of the related rules Closing Date, in form and regulations adopted by substance satisfactory to the Commission; and
(ii) they have performed certain Representatives, together with signed or reproduced copies of such letter or each of the other specified procedures as a result of which they determined that certain Underwriters containing statements and information of an accounting, the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the historical financial statements and certain historical financial information of AUC Holdings LLC and its consolidated subsidiaries included or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth incorporated by reference in the Registration Statement, the Statutory Preliminary Prospectus and the Final Prospectus.
(g) The Company shall have requested and caused RSM to have furnished to the Representatives, including at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, together with signed or reproduced copies of such letter or each of the other Underwriters containing statements and information set forth under of the captions type ordinarily included in accountants’ “Dilutioncomfort letters” to underwriters with respect to the historical financial statements and “Capitalization” certain historical financial information of Pure Health Solutions, Inc. and its consolidated subsidiaries included or incorporated by reference in the Statutory Registration Statement, the Preliminary Prospectus and the Final Prospectus, agrees with .
(h) The Company shall have furnished to the accounting records Representatives a certificate of the Chief Financial Officer of the Company, excluding any questions dated the Closing Date, with respect to certain historical financial information of legal interpretation. References AUC Holdings LLC and its consolidated subsidiaries, certain historical financial information of Pure Health Solutions, Inc. and its consolidated subsidiaries and certain pro forma information, in each case included or incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Final Prospectus in form and substance satisfactory to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letterRepresentatives.
(fi) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus ) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph paragraphs (e), (f), (g) and (h) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) ), earnings, business or prospects properties of the CompanyCompany 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 Statutory Prospectus Disclosure Package and the Final Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(gj) Prior to the Closing Date, the Company shall have furnished to the Representatives such further customary information, certificates and documents as the Representatives may reasonably request.
(h) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(ik) The Securities shall be duly have been listed and admitted and authorized for trading on the New York Stock Exchange subject to official notice of issuance on the Nasdaq Capital Marketissuance, and satisfactory evidence of which such actions shall have been provided to the Representatives.
(jl) On or prior to the Effective Datedate the Preliminary Prospectus is first used in connection with the Offering, the Company shall have delivered furnished to the Representatives executed copies a letter substantially in the form of Exhibit A hereto from each officer and director of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement.
(k) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(g) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date;
(ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof;
(iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory addressed to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and
(v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. 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 Ropes ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. -▇▇▇▇▇, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the any Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Manager contained herein as of the Execution Time, the Closing Date and any Option Closing Datesettlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company and the Manager made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other 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 shall have been instituted or threatened.
(b) The Company At the Closing Date, the Representatives shall have requested received the favorable opinions, dated as of the Closing Date, of each of Sidley Austin LLP and caused Weil, Gotshal & M▇▇▇▇▇▇▇▇ Will & E▇▇▇▇ LLP, counsel for the CompanyCompany and the Manager, in form and substance reasonably satisfactory to counsel for the Underwriters, together with signed or reproduced copies of such letters for each of the other Underwriters substantially in the forms set forth in Exhibits A-1 and A-2 and Exhibit B hereto, respectively, and to such further effect as counsel to the Underwriters may reasonably request. In rendering each such opinion, as applicable, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of New York or the federal laws of the United States, to have furnished the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the Representatives its opinions extent they deem proper, on certificates of responsible officers of the Company and negative assurance letter, each dated public officials. References to the Final Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the RepresentativesDate.
(c) The Representatives shall have received from Ropes Skadden, Arps, Slate, M▇▇▇▇▇▇ & ▇F▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letter10b-5 statement, each dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory ProspectusDisclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives 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 Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary ProspectusStatement, the Disclosure Package, the Final Prospectus and any amendment supplements or supplement amendments thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that, to the best knowledge of such officers:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(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 of the most recent financial statements included or incorporated by reference in the Statutory Prospectus Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), there has been no Material Adverse Effectmaterial adverse change in the 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 Statutory Prospectus Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(e) The Manager shall have furnished to the Representatives a certificate of the Manager, signed by the President of the Manager, dated the Closing Date, to the effect that the signer of such certificate has carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that, to the best knowledge of such officer, the representations and warranties of the Manager in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date.
(f) The Company shall have requested and caused KPMG Deloitte & Touche LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, lettersletters (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements and certain financial information of the Company for the period from June 29, 2020 (date of inception) through July 24, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time contained or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included incorporated by reference in the Registration Statement, the Statutory Prospectus Disclosure Package and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Final Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(fg) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus ) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (ef) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) ), earnings, business or prospects properties of the CompanyCompany 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 Statutory Prospectus Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering offering, sale or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(gh) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(hi) FINRA shall not have raised any objection with respect Prior to the fairness or reasonableness of Closing Date, the underwriting or other arrangements of the transactions contemplated hereby.
(i) The Securities shall be duly have been listed subject to notice of issuance and admitted and authorized for trading on the Nasdaq Capital MarketNew York Stock Exchange, and satisfactory evidence of which such actions shall have been provided to the Representatives.
(j) On At the Effective DateExecution Time, the Company shall have delivered furnished to the Representatives executed copies a letter substantially in the form of Exhibit C hereto from (i) each officer and director of the Securities Assignment AgreementCompany (other than B▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇) and (ii) SPT Investment, the Founder’s Purchase AgreementLLC, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior in each case addressed to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights AgreementRepresentatives.
(k) At least one Business Day prior to the Closing DateExecution Time, the Sponsor Company shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(g) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery furnished to the Representatives on a letter substantially in the applicable Option Closing Date form of the following:
Exhibit D hereto from (i) a certificate signed by the Chief Executive Officer Manager and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date;
(ii) opinions and negative assurance letter of Weil, Gotshal & B▇▇▇▇ ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof;
(iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof;
(iv) a letter dated the Option Closing Date▇▇, in form and substance satisfactory each case addressed to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and
(v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. 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 Ropes Skadden, Arps, Slate, M▇▇▇▇▇▇ & ▇F▇▇▇ LLP, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇Four Times Square, ▇▇▇ ▇▇▇▇New York, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇New York, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein10036-6522, on the Closing Date.
Appears in 1 contract
Sources: Underwriting Agreement (Starwood Property Trust, Inc.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Manager contained herein as of the Execution Time, the Closing Date and any Option Closing Datesettlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company and the Manager made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other 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 Company At the Closing Date, the Representatives shall have requested received the favorable opinion, dated as of the Closing Date, of each of Sidley Austin LLP, DLA Piper LLP (US) and caused Weil▇▇▇▇▇▇▇, Gotshal ▇▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP▇▇▇, L.L.C., counsel for the CompanyCompany and the Manager, in form and substance reasonably satisfactory to counsel for the Underwriters, together with signed or reproduced copies of such letter for each of the other Underwriters substantially in the form set forth in Exhibit A, Exhibit B and Exhibit C hereto, respectively, and to such further effect as counsel to the Underwriters may reasonably request. In rendering each such opinion, as applicable, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of New York or the Federal laws of the United States, to have furnished the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the Representatives its opinions extent they deem proper, on certificates of responsible officers of the Company and negative assurance letter, each dated public officials. References to the Final Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the RepresentativesDate.
(c) The Representatives shall have received from Ropes Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, each dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory ProspectusDisclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives 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 Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary ProspectusStatement, the Disclosure Package, the Final Prospectus and any amendment supplements or supplement amendments thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(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 of the most recent financial statements included in the Statutory Prospectus Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effectmaterial adverse effect on the 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 Statutory Prospectus Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(e) The Manager shall have furnished to the Representatives a certificate of the Manager, signed by the President of the Manager, dated the Closing Date, to the effect that the signer of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that the representations and warranties of the Manager in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date.
(f) The Company shall have requested and caused KPMG Deloitte & Touche LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, letters, (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from June 29, 2020 (date of inception) through July 24, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and certain financial statement schedules included information contained in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus Disclosure Package and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(fg) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus ) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) ), earnings, business or prospects properties of the CompanyCompany 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 Statutory Prospectus Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(gh) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(h) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(i) The Securities shall be duly have been listed subject to notice of issuance and admitted and authorized for trading on the Nasdaq Capital MarketNew York Stock Exchange, and satisfactory evidence of which such actions shall have been provided to the Representatives.
(j) On At the Effective DateExecution Time, the Company shall have delivered furnished to the Representatives executed copies a letter substantially in the form of Exhibit D hereto from (i) each officer and director of the Securities Assignment AgreementCompany (other than ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇), (ii) each officer of the Founder’s Purchase AgreementManager, the Warrant Subscription Agreement Stew ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and the Administrative Services Agreement. On or prior ▇▇▇▇▇▇ ▇▇ ▇▇▇▇ and (iii) SPT Investment, LLC, in each case addressed to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights AgreementRepresentatives.
(k) At least one Business Day prior to the Closing DateExecution Time, the Sponsor Company shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(g) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery furnished to the Representatives on a letter substantially in the applicable Option Closing Date form of the following:
Exhibit E hereto from (i) a certificate signed by the Chief Executive Officer Manager and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date;
(ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof;
(iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof;
(iv) a letter dated the Option Closing Date▇▇, in form and substance satisfactory each case addressed to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and
(v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. 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 Ropes Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇, ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. -▇▇▇▇▇, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Sources: Underwriting Agreement (Starwood Property Trust, Inc.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the any Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Manager contained herein as of the Execution Time, the Closing Date and any Option Closing Datesettlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company and the Manager made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other 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 Company At the Closing Date, the Representatives shall have requested received the favorable opinion, dated as of the Closing Date, of each of Sidley Austin LLP and caused Weil, Gotshal ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the CompanyCompany and the Manager, in form and substance reasonably satisfactory to counsel for the Underwriters, together with signed or reproduced copies of such letter for each of the other Underwriters substantially in the form set forth in Exhibit A and Exhibit B hereto, respectively, and to such further effect as counsel to the Underwriters may reasonably request. In rendering each such opinion, as applicable, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of New York or the Federal laws of the United States, to have furnished the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the Representatives its opinions extent they deem proper, on certificates of responsible officers of the Company and negative assurance letter, each dated public officials. References to the Final Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the RepresentativesDate.
(c) The Representatives shall have received from Ropes Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, each dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory ProspectusDisclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives 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 Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary ProspectusStatement, the Disclosure Package, the Final Prospectus and any amendment supplements or supplement amendments thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(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 of the most recent financial statements included or incorporated by reference in the Statutory Prospectus Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effectmaterial adverse effect on the 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 Statutory Prospectus Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(e) The Manager shall have furnished to the Representatives a certificate of the Manager, signed by the President of the Manager, dated the Closing Date, to the effect that the signer of such certificate has carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that the representations and warranties of the Manager in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date.
(f) The Company shall have requested and caused KPMG Deloitte & Touche LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, lettersletters (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements and certain financial information of the Company for the period from June 29, 2020 (date of inception) through July 24, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time contained or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included incorporated by reference in the Registration Statement, the Statutory Prospectus Disclosure Package and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Final Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(fg) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus ) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (ef) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) ), earnings, business or prospects properties of the CompanyCompany 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 Statutory Prospectus Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(gh) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(hi) FINRA shall not have raised any objection with respect Prior to the fairness or reasonableness Closing Date, the shares of Common Stock issuable upon conversion of the underwriting or other arrangements Securities shall have been listed and admitted and authorized for trading on the NYSE, subject only to notice of the transactions contemplated herebyissuance.
(j) At the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit C hereto from (i) The Securities shall be duly listed subject to notice each officer and director of issuance on the Nasdaq Capital MarketCompany (other than ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇), satisfactory evidence (ii) each officer of which shall have been provided the Manager, and (iii) SPT Investment, LLC, in each case addressed to the Representatives.
(jk) On At the Effective DateExecution Time, the Company shall have delivered furnished to the Representatives executed copies a letter substantially in the form of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement.
(k) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(g) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following:
Exhibit D hereto from (i) a certificate signed by the Chief Executive Officer Manager and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date;
(ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof;
(iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof;
(iv) a letter dated the Option Closing Date▇▇, in form and substance satisfactory each case addressed to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and
(v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. 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 Ropes Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇Four Times Square, ▇▇▇ ▇▇▇▇New York, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇New York, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein10036-6522, on the Closing Date.
Appears in 1 contract
Sources: Underwriting Agreement (Starwood Property Trust, Inc.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any Option Closing Datesettlement date pursuant to Section 3 hereof, 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 to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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 Company shall have requested and caused Weil, Gotshal ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, special counsel for the Company, to have furnished to the Representatives its opinions and negative assurance letteropinions, each dated the Closing Date and addressed to the Representatives, in a form and substance reasonably acceptable satisfactory to the Representatives, substantially in the forms set forth on Exhibits B-1 through B-3 hereto.
(c) The Representatives shall have received from Ropes & ▇▇▇▇▇ LLP▇▇▇▇▇ L.L.P., counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, each dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Disclosure Package and Prospectus (together with any supplement thereto) and other related matters as the Representatives 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 Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer or President and the principal financial Chief Financial Officer or accounting officer Chief Accounting Officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary ProspectusStatement, the Disclosure Package and Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(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 of the most recent financial statements included in the Statutory Prospectus Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse EffectChange, except as set forth in or contemplated in the Statutory Prospectus Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(e) The Company shall have requested and caused KPMG to have furnished to the Representatives, Representatives at the Execution Time a certificate, signed by the Chief Financial Officer substantially in the form set forth on Exhibit C hereto.
(f) On the date hereof, the Underwriters shall have received from each of Ernst & Young LLP, UHY LLP and at ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, L.L.P. a “comfort letter” dated the Closing Date, letters, dated respectively as of date hereof addressed to the Execution Time and as of the Closing DateUnderwriters, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to covering the Company within financial information contained, or incorporated by reference, in the meaning of Registration Statement and Preliminary Prospectus and other customary matters. In addition, on the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from June 29, 2020 (date of inception) through July 24, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicablethe Underwriters shall have received from such accountants a “bring-down comfort letter” dated the Closing Date addressed to the Underwriters, in form and stating substance satisfactory to the Representatives, in effect that:
the form of the “comfort letter” delivered on the date hereof, except that (i) in their opinion it shall cover the audited financial statements and financial statement schedules included information in the Registration Statement, the Statutory Prospectus Statement and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act any amendment or supplement thereto and the related rules and regulations adopted by the Commission; and
(ii) they procedures shall be brought down to a date no more than three (3) days prior to the Closing Date.
(g) On the date hereof, the Underwriters shall have performed certain other specified procedures as received from CGA, independent petroleum engineers, a result of which they determined that certain letter dated the date hereof addressed to the Underwriters, in form and substance satisfactory to the Representatives, covering the oil and gas reserves information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration StatementStatement and Preliminary Prospectus and other customary matters. In addition, on the Closing Date, the Statutory Underwriters shall have received from such independent petroleum engineers a “bring-down comfort letter” dated the Closing Date addressed to the Underwriters, in form and substance satisfactory to the Representatives, in the form of the “comfort letter” delivered on the date hereof, except that (i) it shall cover the oil and gas reserves information in the Registration Statement and the Prospectus and the Prospectus, including the information set forth under the captions “Dilution” any amendment or supplement thereto and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References (ii) procedures shall be brought down to a date no more than three (3) days prior to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letterClosing Date.
(fh) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus ) and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the customary level of comfort provided in the letter or letters referred to in paragraph (eg) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) ), prospects, earnings, business or prospects properties of the CompanyCompany Parties 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 Statutory Prospectus Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement Statement, Disclosure Package and Prospectus (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any or supplement thereto).
(gi) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 3(a)(62) under the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(j) Prior to the Closing Date, the Company shall have furnished to the Representatives such further customary information, certificates and documents as the Representatives may reasonably request.
(h) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(ik) The Securities shall be duly have been listed subject to notice of issuance and admitted and authorized for trading on the Nasdaq Capital MarketNew York Stock Exchange, and reasonably satisfactory evidence of which such actions shall have been provided to the Representatives.
(jl) On At the Effective DateExecution Time, the Company shall have delivered furnished to the Representatives executed copies a letter substantially in the form of Exhibit A hereto from each officer and director of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement Company and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement.
(k) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(g) hereof shall have been issued as of the Closing Date, and no proceedings for each Apollo Entity that purpose shall have been instituted or shall have been threatened.
(m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date;
(ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof;
(iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory owns Common Stock addressed to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and
(v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. 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 Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ L.L.P., counsel for the Underwriters, at One Shell Plaza, ▇▇▇ ▇▇▇▇▇▇▇▇, ▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any Option Closing Datesettlement date pursuant to Section 3 hereof, 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 to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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 Company shall have requested and caused Weil, Gotshal ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representatives its opinions and negative assurance letter, each dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(c) The Representatives shall have received from Ropes ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, each dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives 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 Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing DateDate or settlement date (as applicable), to the effect that the signers of such certificate have carefully examined the Registration Statement Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, as well as each road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date or settlement date (as applicable) with the same effect as if made on the Closing Date or settlement date (as applicable), and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing DateDate or settlement date (as applicable);
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued 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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(e) The Company shall have furnished to the Representatives a certificate signed by the Secretary or Assistant Secretary of the Company, dated the Closing Date, certifying that the Amended and Restated Certificate of Incorporation and bylaws of the Company are true and complete, have not been modified and are in full force and effect, that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, copies of all correspondence between the Company or its counsel and the Commission, and as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(f) The Company shall have requested and caused KPMG WithumSmith to have furnished to the Representatives, at the Execution Time and at the Closing DateDate or settlement date (as applicable), letters, dated respectively as of the Execution Time and as of the Closing DateDate or settlement date (as applicable), in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for included in the period from June 29Registration Statement, 2020 (date of inception) through July 24, 2020Statutory Prospectus and Prospectus, provided that the cutoff date shall not be more than two business days Business Days prior to such Execution Time or Closing DateDate or settlement date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e(f) include any supplement thereto at the date of the letter.
(fg) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e(f) of this Section 6 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i(i) or (ii(ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(gh) Prior to the Closing DateDate or settlement date (as applicable), the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(hi) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(ij) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital MarketNew York Stock Exchange, satisfactory evidence of which shall have been provided to the Representatives.
(jk) On the Effective Closing Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Securities Assignment Agreements, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider Letter, the Registration and Stockholder Rights Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement.
(kl) At least one Business Day prior to the Closing DateDate or settlement date (as applicable), the Sponsor Company shall have caused the applicable purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(lm) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(g5(ii) hereof shall have been issued as of the Closing DateDate or settlement date (as applicable), and no proceedings for that purpose shall have been instituted or shall have been threatened.
(mn) The several obligations On or before the date of this Agreement, the Representatives shall have received a certificate satisfying the beneficial ownership due diligence requirements of the Underwriters to purchase Option Securities hereunder are subject to Financial Crimes Enforcement Network from the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date;
(ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof;
(iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof;
(iv) a letter dated the Option Closing Date, Company in form and substance reasonably satisfactory to the Representatives, from KPMG substantially in the same form and substance along with such additional supporting documentation as the letter furnished to Representatives have requested in connection with the Underwriters pursuant to Section 6(e) hereof; provided that verification of the cutoff date shall not be more than two business days prior to such Option Closing Date; and
(v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securitiesforegoing certificate. If any of the conditions specified in this Section 6 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions, negative assurance letters opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled cancelled at, or at any time prior to, the Closing Date by the Representatives. 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 6 shall be delivered at the office of Ropes ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein, on the Closing DateDate or settlement date (as applicable).
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any Option Closing Datesettlement date pursuant to Section 3 hereof, 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 to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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 Company shall have requested and caused Weil, Gotshal & Ellenoff G▇▇▇▇▇▇▇ & Schole LLP, counsel for the Company, to have furnished to the Representatives its opinions and (including negative assurance letter, each statements) dated the Closing Date and addressed to the Representatives, Representatives in a form reasonably and substance acceptable to the Representatives.
(c) The Company shall have requested and caused M▇▇▇▇▇ Group, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives in form and substance acceptable to the Representatives.
(d) The Representatives shall have received from Ropes D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letter, each dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives 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.
(de) The Company shall have furnished to the Representatives a certificate of the Company, signed by (i) each of the Chief Executive Officer and the principal financial or accounting officer Chief Financial Officer of the Company and (ii) the Secretary of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, as well as each road show used in connection with the Offering, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(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 of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(ef) The Company shall have furnished to the Representatives a certificate signed by the Secretary of the Company, dated the Closing Date, certifying (i) that the Charter is true and complete, has not been modified and is in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all correspondence between the Company or its counsel and the Commission, and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(g) The Company shall have requested and caused KPMG Withum to have furnished to the Representatives, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from June 29August 26, 2020 (date of inception) through July 24August 31, 2020, provided that the cutoff date shall not be more than two business days Business Days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e(g) include any supplement thereto at the date of the letter.
(fh) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e(g) of this Section 6 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) ), earnings, business or prospects properties of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i(i) or (ii(ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(g) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(hi) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(ij) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital MarketNasdaq, satisfactory evidence of which shall have been provided to the Representatives.
(jk) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Registration Rights Agreement, the Services Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights AgreementLetters.
(kl) At least one (1) Business Day prior to the Closing Date, the Sponsor shall have caused certain proceeds from the purchase price for sale of the Private Placement Warrants to be deposited into the Trust Account.
(lm) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(g5(ii) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date;
(ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof;
(iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and
(v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. If any of the conditions specified in this Section 6 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions, negative assurance letters opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. 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 6 shall be delivered at the office of Ropes D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇4▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, Bonds shall be subject subject, in the discretion of the Representatives, to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, date hereof and the Closing Date and any Option Closing Date, to the accuracy of the statements of Company officers on and as of the Company Closing Date made in any certificates given pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, Prospectus Supplement relating to the Bonds shall have been filed in with the manner and Commission pursuant to Rule 424(b) and/or Rule 434 within the applicable time period required prescribed for such filing by Rule 424(b)the rules and regulations under the Act and in accordance with Section 4(a) hereof; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use part thereof shall have been issued and no proceedings proceeding for that purpose shall have been instituted initiated or threatenedthreatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to the Representatives' reasonable satisfaction.
(b) The Company Representatives shall have requested and caused Weilbe furnished with opinions, Gotshal & dated the Closing Date, of ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Vice President and General Counsel of the Company, substantially in the form included as Exhibit A, and ▇▇▇▇▇ LLPDay, Chicago, Illinois, counsel for the Company, to have furnished to substantially in the Representatives its opinions and negative assurance letter, each dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives.included as Exhibit B.
(c) The Representatives shall have received from Ropes ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, New York, New York, counsel for the Underwriters, such opinion or opinions and negative assurance letter, each dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related such matters as the Representatives 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 Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer and the principal financial President or accounting officer any Vice President of the Company, dated the Closing Date, as to the matters set forth in clause (a) and (h) of this Section 6 and to the further effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary ProspectusStatement, the Prospectus and any amendment or supplement 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 the Closing Date with the same effect as if made on the Closing Date Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) there has been no stop order suspending material adverse change in the effectiveness condition of the Company and its subsidiaries taken as a whole, financial or otherwise, or in the earnings, affairs or business prospects of the Company and its subsidiaries taken as a whole, whether or not arising in the ordinary course of business, from that set forth or contemplated by 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, threatenedProspectus Supplement; and
(iii) since (A) as of the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(e) The Company shall have requested and caused KPMG to have furnished to the Representatives, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, the Prospectus did not include any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading and (B) since the date of the Prospectus no event has occurred which should have been set forth, in light of the circumstances, in a supplement or amendment to the Prospectus.
(e) The Representatives shall have received letters from Deloitte & Touche, LLP, independent public accountants for the Company (dated the date of this Agreement and Closing Date, respectively, and in form and substance satisfactory to the Representatives, confirming ) advising that (i) they are a an independent registered public accounting firm that is independent with respect to the Company within the meaning of as required by the Act and published rules and regulations of the Commission thereunder, (ii) in their opinion, the consolidated financial statements and supplemental schedules incorporated by reference in the Registration Statement or Prospectus and covered by their opinion filed with the Commission under Section 13 of the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from June 29, 2020 (date of inception) through July 24, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Exchange Act and the related published rules and regulations adopted of the Commission thereunder, (iii) that they have performed limited procedures, not constituting an audit, including a reading of the latest available interim financial statements of the Company, a reading of the minutes of meetings of the Board of Directors, committees thereof, and of the Shareholder of the Company since the date of the most recent audited financial statements included or incorporated by reference in the Prospectus, inquiries of officials of the Company responsible for financial accounting matters and such other inquiries and procedures as may be specified in such letter, and on the basis of such limited review and procedures nothing came to their attention that caused them to believe that: (A) any material modifications should be made to any unaudited consolidated financial statements of the Company included or incorporated by reference in the Registration Statement or Prospectus for them to be in conformity with generally accepted accounting principles or any unaudited consolidated financial statements of the Company included or incorporated by reference in the Registration Statement or Prospectus do not comply as to form in all material respects with the applicable accounting requirements of the Exchange Act and the rules and regulations of the Commission applicable to Form 10-Q; (B) with respect to the period subsequent to the date of the most recent financial statements included or incorporated by reference in the Prospectus and except as set forth in or contemplated by the CommissionRegistration Statement or Prospectus, there were any changes, at a specified date not more than three business days prior to the date of the letter, in the capital stock of the Company, increases in long-term debt or decreases in stockholder's equity or net current assets of the Company and its consolidated subsidiaries as compared with the amounts shown on the most recent consolidated balance sheet included or incorporated in the Prospectus, or for the period from the date of the most recent financial statements included or incorporated by reference in the Prospectus to such specified date there were any decreases, as compared with the corresponding period in the preceding year, in operating revenues, operating income or net income of the Company and its subsidiaries, except in all instances for changes or decreases set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Representatives; and
and (iiiv) they have performed certain other carried out specified procedures as a result performed for the purpose of which they determined that comparing certain specified financial information of an accounting, financial or statistical nature and percentages (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company, or to the extent not so derived, from schedules prepared by Company officers responsible for such accounting records) set forth included or incorporated by reference in the Registration Statement, the Statutory Statement and Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” with indicated amounts in the Statutory Prospectus and the Prospectus, agrees with the financial statements or accounting records of the Company, Company and (excluding any questions of legal interpretation. References ) have found such information and percentages to be in agreement with the Prospectus in this paragraph (e) include any supplement thereto at the date relevant accounting and financial information of the letterCompany referred to in such letter in the description of the procedures performed by them.
(f) Subsequent to the Execution Time or, if earlier, the respective dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto)Prospectus, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 which makes it impractical or inadvisable in the judgment of the Representatives to proceed with the public offering or the delivery of the Bonds on the terms and in the manner contemplated by the Prospectus.
(g) Subsequent to the execution and delivery of this Agreement, (i) no downgrading shall have occurred in the rating accorded the Bonds or any other debt securities or preferred stock of or guaranteed by the Company by any "nationally recognized statistical rating organization," as such term is defined by the Commission for purposes of Rule 436(g)(2) under the Act and (ii) no such organization shall have publicly announced that it has under surveillance or review, or has changed its outlook with respect to, its rating of the Bonds or of any other debt securities or preferred stock of or guaranteed by the Company (other than an announcement with positive implications of a possible upgrading).
(i) Neither the Company nor any of its subsidiaries shall have sustained since the date of the latest audited financial statements included or incorporated by reference in the Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor disturbance or dispute or action, order or decree of any court, arbitrator or governmental or regulatory authority, otherwise than as set forth or contemplated in the Prospectus Supplement, and (ii) since the date of this Agreement, neither the Company nor any of its subsidiaries shall have incurred any liabilities or obligations, direct or contingent, or entered into any transactions, not in the ordinary course of business, which are material to the Company and its subsidiaries, and there shall not have been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the earningsgeneral affairs, management, business, managementfinancial position, propertiesstockholders' equity, assets, rights, operations, condition (financial or otherwise) results of operations or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except Company and its subsidiaries otherwise than as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) Supplement, the effect of which, in any such case referred to described in clause (i) or (ii) above, is, is in the sole judgment of the Representatives, Underwriters so material and adverse as to make it impractical impracticable or inadvisable to proceed with the offering offering, sale or the delivery of the Securities as Bonds on the terms and in the manner contemplated by this Agreement and the Prospectus.
(i) No Representative shall have advised the Company that the Registration Statement (exclusive of or Prospectus, or any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any or supplement thereto), contains an untrue statement of fact which in the opinion of counsel for the Underwriters is material or omits to state a fact which in the opinion of counsel for the Underwriters is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(gj) Prior No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the Closing Date, prevent the issuance or sale of the Bonds; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Bonds.
(k) All corporate proceedings and other legal matters incident to the authorization, form and validity of the Indenture and this Agreement and the transactions contemplated hereby shall be reasonably satisfactory to counsel to the Underwriters, and prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives they may reasonably request.
(hl) FINRA The Company and Trustee shall not have raised any objection with respect entered into the supplemental Indenture relating to the fairness or reasonableness of Bonds, and the underwriting or other arrangements of Representatives shall have received counterparts, conformed as executed thereof, and the transactions contemplated hereby.
(i) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which Bonds shall have been provided to the Representatives.
(j) On the Effective Date, duly executed and delivered by the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement.
(k) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(l) No order preventing or suspending the sale of the Units in any jurisdiction designated authenticated by the Representatives pursuant to Section 5(g) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date;
(ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof;
(iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and
(v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option SecuritiesTrustee. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in required by this Agreement, or if any of the opinions, negative assurance letters opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriterstheir counsel, this Agreement and all obligations of the Underwriters hereunder may be canceled cancelled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing writing, or by telephone or facsimile telegraph confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Firm Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any Option Closing Datesettlement date pursuant to Section 4 hereof, 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 to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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 Company shall have requested and caused Weil, Gotshal & K▇▇▇▇▇▇▇ & E▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representatives its opinions and negative assurance letter, each dated the Closing Date and any settlement date, as applicable, and addressed to the Representatives, in a customary form reasonably acceptable to the Representatives.
(c) The Company shall have requested and caused M▇▇▇▇▇ and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and any settlement date, as applicable, and addressed to the Representatives, in a customary form reasonably acceptable to the Representatives.
(d) The Representatives shall have received from Ropes D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, each dated the Closing Date and any settlement date, as applicable, and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related customary matters as the Representatives 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 Company shall have furnished to the Representatives a certificate of the Company, signed by the its Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing DateDate and any settlement date, as applicable, to the effect that the signers of such certificate have carefully examined the Registration Statement Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and each “road show” as defined in Rule 433(h) of the Act used in connection with the Offering, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date such date with the same effect as if made on the Closing Date such date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Datesuch 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 of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(ef) The Company shall have requested and caused KPMG M▇▇▇▇▇ to have furnished to the Representatives, at the Execution Time and at the Closing DateDate and any settlement date, as applicable, letters, dated respectively as of the Execution Time and as of the Closing DateDate and any settlement date, as applicable, in form and substance reasonably satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from June 29, 2020 (date of inception) through July 24, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(fg) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (ef) of this Section 6 7 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(gh) Prior to the Closing Date, and any settlement date, as applicable, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(hi) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(ij) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital MarketNew York Stock Exchange, satisfactory evidence of which shall have been provided to the Representatives.
(jk) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Trust Agreement, the Forward Purchase Agreements, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider Letter, the Registration and Shareholder Rights Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement.
(kl) At least one Business Day prior to the Closing DateDate or a settlement date, as applicable, the Sponsor Company shall have caused proceeds from the purchase price for sale of the Private Placement Warrants to be deposited into the Trust AccountAccount such that the cumulative amount deposited into the Trust Account as of such Closing Date or such settlement date, as applicable, shall equal the product of the number of Units issued in the Offering as of such Closing Date or such settlement date, as applicable, and the public offering price per Unit as set forth on the cover of the Prospectus.
(lm) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(g6(ii) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date;
(ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof;
(iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and
(v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. If any of the conditions specified in this Section 6 7 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions, negative assurance letters opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. 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 7 and, if applicable, the last sentence of Section 4(c), shall be delivered at the office of Ropes D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇4▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein, on the Closing DateDate or the applicable settlement date, as applicable.
Appears in 1 contract
Sources: Underwriting Agreement (Bluescape Opportunities Acquisition Corp.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Firm Securities and the Option Optional Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any Option Closing Datesettlement date pursuant to Section 4 hereof, 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 to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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 Company shall have requested and caused Weil, Gotshal ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representatives Representative its opinions and negative assurance letter, each dated the Closing Date and any settlement date, as applicable, and addressed to the RepresentativesRepresentative, in a form reasonably acceptable to the RepresentativesRepresentative.
(c) The Representatives Representative shall have received from Ropes & ▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, each dated the Closing Date and any settlement date, as applicable, and addressed to the RepresentativesRepresentative, with respect to the issuance and sale of the Offered Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives Representative 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 Company shall have furnished to the Representatives Representative a certificate of the Company, signed by the its Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, and any settlement date, as applicable, to the effect that the signers of such certificate have carefully examined the Registration Statement and each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and each road show used in connection with the Offering, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(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 of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(e) The Company shall have requested and caused KPMG ▇▇▇▇▇▇ to have furnished to the RepresentativesRepresentative, at the Execution Time and at the Closing DateDate and any settlement date, as applicable, letters, dated respectively as of the Execution Time and as of the Closing DateDate and any settlement date, as applicable, in form and substance satisfactory to the RepresentativesRepresentative, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from June 29September 1, 2020 (date of inception) through July 24September 4, 2020, ; provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion opinion, the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (eSection 7(e) include any supplement thereto at the date of the letter.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (eSection 7(e) of this Section 6 hereof or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the RepresentativesRepresentative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Offered Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(g) Prior to the Closing DateDate and any settlement date, as applicable, the Company shall have furnished to the Representatives Representative such further information, certificates and documents as the Representatives Representative may reasonably request.
(h) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(i) The Offered Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital MarketNasdaq, satisfactory evidence of which shall have been provided to the RepresentativesRepresentative.
(j) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Forward Purchase Agreement, the Insider Letters Letter and the Registration Rights Agreement.
(k) At least one Business Day prior to the Closing DateDate or a settlement date, as applicable, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives Representative pursuant to Section 5(g6(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date;
(ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof;
(iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and
(v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. If any of the conditions specified in this Section 6 7 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions, negative assurance letters opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the RepresentativesRepresentative. 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 7 shall be delivered at the office of Ropes & ▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇▇, unless otherwise indicated herein, on the Closing DateDate and any settlement date, as applicable.
Appears in 1 contract
Sources: Underwriting Agreement (Lux Health Tech Acquisition Corp.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any Option Closing Datesettlement date pursuant to Section 3 hereof, 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 to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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 Company shall have requested and caused Weil, Gotshal Winston & ▇S▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representatives its opinions and (including negative assurance letter, each statements) dated the Closing Date and addressed to the Representatives, Representatives in a form reasonably and substance acceptable to the Representatives.
(c) The Company shall have requested and caused M▇▇▇▇▇ and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives in form and substance acceptable to the Representatives.
(d) The Representatives shall have received from Ropes D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letter, each dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives 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.
(de) The Company shall have furnished to the Representatives a certificate of the Company, signed by (i) each of the Chief Co-Executive Officer Chairmen and the principal financial or accounting officer Vice Chairman of the Company and (ii) the Secretary of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, as well as each road show used in connection with the Offering, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(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 of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(ef) The Company shall have furnished to the Representatives a certificate signed by the Secretary of the Company, dated the Closing Date, certifying (i) that the Charter is true and complete, has not been modified and is in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all correspondence between the Company or its counsel and the Commission, and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(g) The Company shall have requested and caused KPMG Withum to have furnished to the Representatives, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from June 29April 30, 2020 2018 (date of inception) through July 24May 10, 20202018, provided that the cutoff date shall not be more than two business days Business Days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (eg) include any supplement thereto at the date of the letter.
(fh) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (eg) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) ), earnings, business or prospects properties of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(g) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(hi) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(ij) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital MarketNew York Stock Exchange, satisfactory evidence of which shall have been provided to the Representatives.
(jk) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Forward Purchase Agreements, the Registration Rights Agreement, the Services Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights AgreementLetters.
(kl) At least one (1) Business Day prior to the Closing Date, the Sponsor shall have caused certain proceeds from the purchase price for sale of the Private Placement Warrants to be deposited into the Trust Account.
(lm) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(g5(ii) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date;
(ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof;
(iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and
(v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. 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 Ropes D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, at 450 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, unless nless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any Option Closing Datesettlement date pursuant to Section 3 hereof, 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 to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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 Company shall have requested and caused Weil, Gotshal & K▇▇▇▇▇▇▇ & E▇▇▇▇ LLP, U.S. counsel for the Company, to have furnished to the Representatives its opinions and negative assurance letter, each dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(c) The Company shall have requested and caused Walkers, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, in a form satisfactory to the Representatives.
(d) The Representatives shall have received from Ropes & ▇G▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, each dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives 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.
(de) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement 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 the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(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 of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(ef) The Company shall have furnished to the Representatives a certificate signed by the Secretary or Assistant Secretary of the Company, dated the Closing Date, certifying (i) that the Amended and Restated Memorandum and Articles of Association of the Company are true and complete, have not been modified and are in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all correspondence between the Company or its counsel and the Commission, and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(g) The Company shall have requested and caused KPMG Withum to have furnished to the Representatives, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from June 29July 28, 2020 (date of inception) through July 24[●], 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letterletters.
(fh) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(gi) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(hj) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(ik) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(jl) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider Letters, the Registration Rights Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement.
(km) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(ln) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(g) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date;
(ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof;
(iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and
(v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. 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 Ropes & ▇G▇▇▇ LLP, counsel for the Underwriters, at ▇1▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇P▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Firm Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any Option Closing Datesettlement date pursuant to Section 4 hereof, 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 to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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 Company shall have requested and caused Weil, Gotshal ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representatives Representative its opinions and negative assurance letter, each dated the Closing Date and any settlement date, as applicable, and addressed to the RepresentativesRepresentative, in a form reasonably acceptable to the RepresentativesRepresentative.
(c) The Representatives Company shall have requested and caused ▇▇▇▇▇▇ and Calder, Cayman Islands counsel for the Company, to have furnished to the Representative its opinions dated the Closing Date and any settlement date, as applicable, and addressed to the Representative, in a form reasonably acceptable to the Representative.
(d) The Representative shall have received from Ropes Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, each dated the Closing Date and any settlement date, as applicable, and addressed to the RepresentativesRepresentative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives Representative 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.
(de) The Company shall have furnished to the Representatives Representative a certificate of the Company, signed by the its Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing DateDate and any settlement date, as applicable, to the effect that the signers of such certificate have carefully examined the Registration Statement Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and each “road show” as defined in Rule 433(h) of the Act used in connection with the Offering, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date such date with the same effect as if made on the Closing Date such date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Datesuch 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 of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(ef) The Company shall have requested and caused KPMG Withum to have furnished to the RepresentativesRepresentative, at the Execution Time and at the Closing DateDate and any settlement date, as applicable, letters, dated respectively as of the Execution Time and as of the Closing DateDate and any settlement date, as applicable, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from June 29, 2020 (date of inception) through July 24, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letterRepresentative.
(fg) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (ef) of this Section 6 7 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the RepresentativesRepresentative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(gh) Prior to the Closing Date, and any settlement date, as applicable, the Company shall have furnished to the Representatives Representative such further information, certificates and documents as the Representatives Representative may reasonably request.
(hi) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(ij) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital MarketNasdaq, satisfactory evidence of which shall have been provided to the RepresentativesRepresentative.
(jk) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider Letters Letter, the Registration and Shareholder Rights Agreement and the Registration Rights Administrative Services Agreement.
(kl) At least one Business Day prior to the Closing DateDate or a settlement date, as applicable, the Sponsor Company shall have caused proceeds from the purchase price for sale of the Private Placement Warrants to be deposited into the Trust AccountAccount such that the cumulative amount deposited into the Trust Account as of such Closing Date or such settlement date, as applicable, shall equal the product of the number of Units issued in the Offering as of such Closing Date or such settlement date, as applicable, and the public offering price per Unit as set forth on the cover of the Prospectus.
(lm) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives Representative pursuant to Section 5(g6(ii) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date;
(ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof;
(iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and
(v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. If any of the conditions specified in this Section 6 7 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions, negative assurance letters opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the RepresentativesRepresentative. 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 7 and, if applicable, the last sentence of Section 4(c), shall be delivered at the office of Ropes Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, unless otherwise indicated herein, on the Closing DateDate or the applicable settlement date, as applicable.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any Option Closing Datesettlement date pursuant to Section 3 hereof, 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 to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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 Company shall have requested and caused Weil, Gotshal ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representatives Representative its opinions dated the Closing Date or settlement date (as applicable) and negative assurance letteraddressed to the Representative, each in a form reasonably acceptable to the Representative.
(c) The Company shall have requested and caused ▇▇▇▇▇▇ and Calder, Cayman Islands counsel for the Company, to have furnished to the Representative its opinions dated the Closing Date and addressed to the Representatives, Representative in a form reasonably and substance acceptable to the RepresentativesRepresentative.
(cd) The Representatives Representative shall have received from Ropes ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, each dated the Closing Date or settlement date (as applicable) and addressed to the RepresentativesRepresentative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives Representative 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.
(de) The Company shall have furnished to the Representatives Representative a certificate of the Company, signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing DateDate or settlement date (as applicable), to the effect that the signers of such certificate have carefully examined the Registration Statement Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, as well as each road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date or settlement date (as applicable) with the same effect as if made on the Closing Date or settlement date (as applicable), and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing DateDate or settlement date (as applicable);
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued 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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(ef) The Company shall have furnished to the Representative a certificate signed by the Chief Operating Officer of the Company, dated the Closing Date, certifying that the Charter is true and complete, have not been modified and are in full force and effect, that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, copies of all correspondence between the Company or its counsel and the Commission, and as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(g) The Company shall have requested and caused KPMG ▇▇▇▇▇▇ to have furnished to the RepresentativesRepresentative, at the Execution Time and at the Closing DateDate or settlement date (as applicable), letters, dated respectively as of the Execution Time and as of the Closing DateDate or settlement date (as applicable), in form and substance satisfactory to the RepresentativesRepresentative, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for included in the period from June 29Registration Statement, 2020 (date of inception) through July 24, 2020, Statutory Prospectus and Prospectus; provided that the cutoff date shall not be more than two business days Business Days prior to such Execution Time or Closing DateDate or settlement date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e(f) include any supplement thereto at the date of the letter.
(fh) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, which is, in the sole judgment of the RepresentativesRepresentative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(gi) Prior to the Closing DateDate or settlement date (as applicable), the Company shall have furnished to the Representatives Representative such further information, certificates and documents as the Representatives Representative may reasonably request.
(hj) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(ik) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the RepresentativesRepresentative.
(jl) On the Effective Closing Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives Representative executed copies of the Trust Agreement, the Warrant Agreement, the Securities Subscription Agreement, the Private Placement Warrants Purchase Agreement, the Insider Letters Letter, the Registration and Shareholder Rights Agreement and the Registration Rights Services Agreement.
(km) At least one Business Day prior to the Closing DateDate or settlement date (as applicable), the Sponsor Company shall have caused the applicable purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(ln) No order preventing or suspending the sale of the Units Securities in any jurisdiction designated by the Representatives Representative pursuant to Section 5(g5(ii) hereof shall have been issued as of the Closing DateDate or settlement date (as applicable), and no proceedings for that purpose shall have been instituted or shall have been threatened.
(mo) The several obligations On or before the date of this Agreement, the Representative shall have received a certificate satisfying the beneficial ownership due diligence requirements of the Underwriters to purchase Option Securities hereunder are subject to Financial Crimes Enforcement Network (“FinCEN”) from the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date;
(ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof;
(iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof;
(iv) a letter dated the Option Closing Date, Company in form and substance reasonably satisfactory to the RepresentativesRepresentative, from KPMG substantially in the same form and substance along with such additional supporting documentation as the letter furnished to Representative has requested in connection with the Underwriters pursuant to Section 6(e) hereof; provided that verification of the cutoff date shall not be more than two business days prior to such Option Closing Date; and
(v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securitiesforegoing certificate. If any of the conditions specified in this Section 6 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions, negative assurance letters opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled cancelled at, or at any time prior to, the Closing Date by the RepresentativesRepresentative. 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 6 shall be delivered at the office of Ropes in electronic format to ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇▇▇ ▇Attention: ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein, on the Closing DateDate or settlement date (as applicable).
Appears in 1 contract
Sources: Underwriting Agreement (Corazon Capital V838 Monoceros Corp)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any Option Closing Datesettlement date pursuant to Section 3 hereof, 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 to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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 Company shall have requested and caused WeilSkadden, Gotshal & Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representatives Representative its opinions opinion and negative assurance letter, each dated the Closing Date and any settlement date, as applicable, and addressed to the RepresentativesRepresentative, in a form reasonably acceptable to the RepresentativesRepresentative.
(c) The Representatives Representative shall have received from Ropes ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, each dated the Closing Date and any settlement date, as applicable, and addressed to the RepresentativesRepresentative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives Representative 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 Company shall have furnished to the Representatives Representative a certificate of the Company, signed by the Chief Executive Officer and the principal financial or accounting another officer of the Company, dated the Closing Date, and any settlement date, as applicable, to the effect that the signers of such certificate have carefully examined the Registration Statement Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that:
(i) i. the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date such date with the same effect as if made on the Closing Date such date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;such date; Credit Suisse Securities (USA) LLC [ ● ], 2021
(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 of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(e) The Company shall have requested and caused KPMG Withum to have furnished to the RepresentativesRepresentative, at the Execution Time and at the Closing DateDate and any settlement date, as applicable, letters, dated respectively as of the Execution Time and as of the Closing DateDate and any settlement date, as applicable, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from June 29, 2020 (date of inception) through July 24, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letterRepresentative.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the RepresentativesRepresentative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(g) Prior to the Closing DateDate and any settlement date, as applicable, the Company shall have furnished to the Representatives Representative such further information, certificates and documents as the Representatives Representative may reasonably request.
(h) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(i) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital MarketNew York Stock Exchange, satisfactory evidence of which shall have been provided to the RepresentativesRepresentative.
(j) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founders’ Purchase Agreement, the Warrant Subscription Agreement, the Insider Letters and Letter, the Registration Rights Agreement and the Support Services Agreement.
(k) At least one Business Day prior to the Closing DateDate or any settlement date, the Sponsor shall have caused as applicable, the purchase price for the Private Placement Warrants to shall be deposited into the Trust AccountAccount at ▇.▇. ▇▇▇▇▇▇ Chase Bank, N.A., with Continental Stock Transfer & Trust Company acting as trustee.
(l) No order preventing or suspending the sale of the Units Securities in any jurisdiction designated by the Representatives Representative pursuant to Section 5(g5(ii) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date;
(ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof;
(iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and
(v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the RepresentativesRepresentative. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. Credit Suisse Securities (USA) LLC [ ● ], 2021 The documents required to be delivered by this Section 6 shall be delivered delivered, electronically, or if by mail, at the office of Ropes ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, unless otherwise indicated herein, on the Closing DateDate and any settlement date, as applicable.
Appears in 1 contract
Sources: Underwriting Agreement (Crucible Acquisition Corp. II)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any Option Closing Datesettlement date pursuant to Section 3 hereof, 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 to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other 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 Company shall have requested and caused Weil, Gotshal Fenwick & ▇▇▇▇▇▇ West LLP, counsel for the Company, to have furnished to the Representatives its opinions and negative assurance lettertheir opinion, each dated the Closing Date and addressed to the Representatives, in a the form reasonably acceptable to agreed by such counsel and the Representatives.
(c) The Company shall have requested and caused Seed IP Law Group PLLC and ▇▇▇▇▇▇▇▇▇ Ring, intellectual property counsel for the Company, to have furnished to the Representatives their opinions, dated the Closing Date and addressed to the Representatives, in the forms agreed by such counsel and the Representatives.
(d) The Company shall have requested and caused Hyman, Phelps, & ▇▇▇▇▇▇▇▇, PC, regulatory counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, in the form agreed by such counsel and the Representatives.
(e) The Representatives shall have received from Ropes & ▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, each dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory ProspectusDisclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representatives 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.
(df) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer and the principal financial or accounting officer Chief Financial Officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary ProspectusStatement, the Disclosure Package, the Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(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 of the most recent financial statements included in the Statutory Prospectus Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(eg) The Company shall have requested and caused KPMG Ernst & Young LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from June 29, 2020 (date of inception) through July 24, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(fh) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus ) and the Prospectus (exclusive of any amendment or supplement thereto)) and prior to the issuance of the Underwritten Securities, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) ), earnings, business or prospects properties of the CompanyCompany 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 Statutory Prospectus Disclosure Package and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(gi) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(hj) FINRA Subsequent to the Execution Time and prior to the issuance of the Underwritten Securities, there shall not have raised been any objection with respect to decrease in the fairness or reasonableness rating of any of the underwriting Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 3(a)(62) under the Exchange Act) or other arrangements any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the transactions contemplated herebypossible change.
(ik) The Securities shall be duly have been listed subject to notice of issuance and admitted and authorized for trading on the Nasdaq Capital NASDAQ Global Market, and satisfactory evidence of which such actions shall have been provided to the Representatives.
(jl) On At the Effective DateExecution Time, the Company shall have delivered furnished to the Representatives executed copies a letter substantially in the form of Exhibit A hereto from each officer and director of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement Company and the Administrative Services Agreement. On or prior to the Closing Date, holders of equity securities of the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement.
(k) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(g) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives listed on the applicable Option Closing Date of the following:
(i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date;
(ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof;
(iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory Schedule IV hereto addressed to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and
(v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. 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 Ropes & ▇▇▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any Option Closing Datesettlement date pursuant to Section 3 hereof, 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 to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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 Company shall have requested and caused WeilSkadden, Gotshal & Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representatives Representative its opinions opinion and negative assurance letter, each dated the Closing Date and any settlement date, as applicable, and addressed to the RepresentativesRepresentative, in a form reasonably acceptable to the RepresentativesRepresentative.
(c) The Representatives Representative shall have received from Ropes ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, each dated the Closing Date and any settlement date, as applicable, and addressed to the RepresentativesRepresentative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives Representative 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.. Credit Suisse Securities (USA) LLC January 4, 2021
(d) The Company shall have furnished to the Representatives Representative a certificate of the Company, signed by the Chief Executive Officer and the principal financial or accounting another officer of the Company, dated the Closing Date, and any settlement date, as applicable, to the effect that the signers of such certificate have carefully examined the Registration Statement Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement 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 the Closing Date such date with the same effect as if made on the Closing Date such date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Datesuch 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 of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(e) The Company shall have requested and caused KPMG Withum to have furnished to the RepresentativesRepresentative, at the Execution Time and at the Closing DateDate and any settlement date, as applicable, letters, dated respectively as of the Execution Time and as of the Closing DateDate and any settlement date, as applicable, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from June 29, 2020 (date of inception) through July 24, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letterRepresentative.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e(e) of this Section 6 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i(i) or (ii(ii) above, is, in the sole judgment of the RepresentativesRepresentative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(g) Prior to the Closing DateDate and any settlement date, as applicable, the Company shall have furnished to the Representatives Representative such further information, certificates and documents as the Representatives Representative may reasonably request.
(h) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(i) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital MarketNew York Stock Exchange, satisfactory evidence of which shall have been provided to the Representatives.Representative. Credit Suisse Securities (USA) LLC January 4, 2021
(j) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founders’ Purchase Agreement, the Warrant Subscription Agreement, the Insider Letters and Letter, the Registration Rights Agreement and the Support Services Agreement.
(k) At least one Business Day prior to the Closing DateDate or any settlement date, the Sponsor shall have caused as applicable, the purchase price for the Private Placement Warrants to shall be deposited into the Trust AccountAccount at ▇.▇. ▇▇▇▇▇▇ Chase Bank, N.A., with Continental Stock Transfer & Trust Company acting as trustee.
(l) No order preventing or suspending the sale of the Units Securities in any jurisdiction designated by the Representatives Representative pursuant to Section 5(g5(ii) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date;
(ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof;
(iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and
(v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. If any of the conditions specified in this Section 6 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions, negative assurance letters opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the RepresentativesRepresentative. 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 6 shall be delivered delivered, electronically, or if by mail, at the office of Ropes ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇-▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, unless otherwise indicated herein, on the Closing DateDate and any settlement date, as applicable.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any Option Closing Datesettlement date pursuant to Section 3 hereof, 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 to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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 Company shall have requested and caused Weil, Gotshal Ropes & ▇▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representatives its opinions and negative assurance letter, each dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(c) The Representatives shall have received from Ropes ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, each dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives 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 Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing DateDate or settlement date (as applicable), to the effect that the signers of such certificate have carefully examined the Registration Statement Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, as well as each road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date or settlement date (as applicable) with the same effect as if made on the Closing Date or settlement date (as applicable), and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing DateDate or settlement date (as applicable);
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued 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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(e) The Company shall have furnished to the Representatives a certificate signed by the Secretary or Assistant Secretary of the Company, dated the Closing Date, certifying that the Amended and Restated Certificate of Incorporation and bylaws of the Company are true and complete, have not been modified and are in full force and effect, that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, copies of all correspondence between the Company or its counsel and the Commission, and as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(f) The Company shall have requested and caused KPMG WithumSmith to have furnished to the Representatives, at the Execution Time and at the Closing DateDate or settlement date (as applicable), letters, dated respectively as of the Execution Time and as of the Closing DateDate or settlement date (as applicable), in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for included in the period from June 29Registration Statement, 2020 (date of inception) through July 24, 2020Statutory Prospectus and Prospectus, provided that the cutoff date shall not be more than two business days Business Days prior to such Execution Time or Closing DateDate or settlement date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e(f) include any supplement thereto at the date of the letter.
(fg) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, which is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(gh) Prior to the Closing DateDate or settlement date (as applicable), the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(hi) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(ij) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital MarketNew York Stock Exchange, satisfactory evidence of which shall have been provided to the Representatives.
(jk) On the Effective Closing Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Subscription Agreement, the Warrant Purchase Agreement, the Insider Letters Letter and the Registration and Stockholder Rights Agreement.
(kl) At least one Business Day prior to the Closing DateDate or settlement date (as applicable), the Sponsor Company shall have caused the applicable purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(lm) No order preventing or suspending the sale of the Units Securities in any jurisdiction designated by the Representatives pursuant to Section 5(g5(hh) hereof shall have been issued as of the Closing DateDate or settlement date (as applicable), and no proceedings for that purpose shall have been instituted or shall have been threatened.
(mn) The several obligations On or before the date of this Agreement, the Representatives shall have received a certificate satisfying the beneficial ownership due diligence requirements of the Underwriters to purchase Option Securities hereunder are subject to Financial Crimes Enforcement Network (“FinCEN”) from the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date;
(ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof;
(iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof;
(iv) a letter dated the Option Closing Date, Company in form and substance reasonably satisfactory to the Representatives, from KPMG substantially in the same form and substance along with such additional supporting documentation as the letter furnished to Representatives have requested in connection with the Underwriters pursuant to Section 6(e) hereof; provided that verification of the cutoff date shall not be more than two business days prior to such Option Closing Date; and
(v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securitiesforegoing certificate. If any of the conditions specified in this Section 6 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions, negative assurance letters opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled cancelled at, or at any time prior to, the Closing Date by the Representatives. 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 6 shall be delivered at the office of Ropes in electronic format to ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇▇▇ ▇Attention: ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein, on the Closing DateDate or settlement date (as applicable).
Appears in 1 contract
Sources: Underwriting Agreement (Climate Real Impact Solutions II Acquisition Corp)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any Option Closing Datesettlement date pursuant to Section 3 hereof, 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 to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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 Company shall have requested and caused WeilSkadden, Gotshal & Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representatives Representative its opinions opinion and negative assurance letter, each letter dated the Closing Date or settlement date (as applicable) and addressed to the RepresentativesRepresentative, in a form reasonably acceptable to the RepresentativesRepresentative.
(c) The Representatives Representative shall have received from Ropes ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letter, each letter dated the Closing Date or settlement date (as applicable) and addressed to the RepresentativesRepresentative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives Representative 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 Company shall have furnished to the Representatives Representative a certificate of the Company, signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing DateDate or settlement date (as applicable), to the effect that the signers of such certificate have carefully examined the Registration Statement Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, as well as each road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the such Closing Date or settlement date (as applicable) with the same effect as if made on the Closing Date or settlement date (as applicable), and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the such Closing DateDate or settlement date (as applicable);
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued 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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(e) The Company shall have furnished to the Representative a certificate signed by the signed by the Chief Executive Officer and the Chairman of the Company, dated the Closing Date, certifying (i) that the Amended and Restated Certificate of Incorporation and bylaws of the Company are true and complete, have not been modified and are in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all written correspondence between the Company or its counsel and the Commission, and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(f) The Company shall have requested and caused KPMG ▇▇▇▇▇▇ to have furnished to the RepresentativesRepresentative, at the Execution Time and at the Closing DateDate or settlement date (as applicable), comfort letters, dated respectively as of the Execution Time and as of the Closing DateDate or settlement date (as applicable), in form and substance satisfactory to the RepresentativesRepresentative, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for included in the period from June 29Registration Statement, 2020 (date of inception) through July 24, 2020, Statutory Prospectus and Prospectus; provided that the cutoff date shall not be more than two business days Business Days prior to such Execution Time or Closing DateDate or settlement date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (ef) include any supplement thereto at the date of the letter.
(fg) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, which is, in the sole judgment of the RepresentativesRepresentative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(gh) Prior to the Closing DateDate or settlement date (as applicable), the Company shall have furnished to the Representatives Representative such further information, certificates and documents as the Representatives Representative may reasonably request.
(hi) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(ij) The Securities shall be duly listed listed, subject to notice of issuance issuance, on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the RepresentativesRepresentative.
(jk) On the Effective Closing Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives Representative executed copies of the Trust Agreement, the Warrant Agreement, the Securities Subscription Agreement, the Warrant Purchase Agreement, the Insider Letters Letter, the Administrative Services Agreement and the Registration Rights Agreement.
(kl) At least one Business Day prior to the Closing DateDate or settlement date (as applicable), the Sponsor Company shall have caused the applicable purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(lm) No order preventing or suspending the sale of the Units Securities in any jurisdiction designated by the Representatives Representative pursuant to Section 5(g5(ii) hereof shall have been issued as of the Closing DateDate or settlement date (as applicable), and no proceedings for that purpose shall have been instituted or shall have been threatened.
(mn) The several obligations On or before the date of this Agreement, the Representative shall have received a certificate satisfying the beneficial ownership due diligence requirements of the Underwriters to purchase Option Securities hereunder are subject to Financial Crimes Enforcement Network (“FinCEN”) from the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date;
(ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof;
(iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof;
(iv) a letter dated the Option Closing Date, Company in form and substance reasonably satisfactory to the RepresentativesRepresentative, from KPMG substantially in the same form and substance along with such additional supporting documentation as the letter furnished to Representative has requested in connection with the Underwriters pursuant to Section 6(e) hereof; provided that verification of the cutoff date shall not be more than two business days prior to such Option Closing Date; and
(v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securitiesforegoing certificate. 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, negative assurance letters opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled cancelled at, or at any time prior to, the Closing Date by the RepresentativesRepresentative. 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 Ropes in electronic format to ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇▇▇ ▇Attention: ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein, on the Closing DateDate or settlement date (as applicable).
Appears in 1 contract
Sources: Underwriting Agreement (PWP Forward Acquisition Corp. I)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities Units and the Option SecuritiesUnits, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date Date, with respect to the Underwritten Units and Option Units purchased on the Closing Date, and any settlement date, with respect to Option Units purchased after the Closing Date, 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 to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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 Company shall have requested and caused Weil, Gotshal ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representatives Representative its opinions and negative assurance letter, each dated the Closing Date Date, or settlement date, as applicable, and addressed to the RepresentativesRepresentative, in a form reasonably acceptable to the RepresentativesRepresentative.
(c) The Representatives Company shall have requested and caused ▇▇▇▇▇▇ and Calder, Cayman Islands counsel for the Company, to have furnished to the Representative its opinions dated the Closing Date, or settlement date, as applicable, and addressed to the Representative, in a form satisfactory to the Representative.
(d) The Representative shall have received from Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letter, each dated the Closing Date Date, or settlement date, as applicable, and addressed to the RepresentativesRepresentative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives Representative 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.
(de) The Company shall have furnished to the Representatives Representative a certificate of the Company, signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, or settlement date, as applicable, to the effect that the signers signer of such certificate have has carefully examined the Registration Statement Statement, each Preliminary Prospectus, the Statutory Prospectus, the Prospectus and any amendment or supplement 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 the Closing Date Date, or settlement date, as applicable, with the same effect as if made on the Closing Date Date, or settlement date, as applicable, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date, or settlement date, as applicable;
(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 of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(ef) The Company shall have furnished to the Representative a certificate signed by the Secretary or the Assistant Secretary of the Company, dated the Closing Date, or settlement date, as applicable, certifying (i) that the Amended and Restated Memorandum and Articles of Association of the Company are true and complete, have not been modified and are in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all correspondence between the Company or its counsel and the Commission, and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(g) The Company shall have requested and caused KPMG ▇▇▇▇▇▇ to have furnished to the RepresentativesRepresentative, at the Execution Time and at the Closing Date, or settlement date, as applicable, letters, dated respectively as of the Execution Time and as of the Closing Date, or settlement date, as applicable, in form and substance satisfactory to the RepresentativesRepresentative, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company as of February 10, 2021 and for the period from June 29February 8, 2020 2021 (date of inception) through July 24February 10, 20202021, provided that the cutoff date shall not be more than two business days Business Days prior to such Execution Time or Closing DateDate or settlement date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (eg) include any supplement thereto at the date of the letterletters.
(fh) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (eg) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the RepresentativesRepresentative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(gi) Prior to the Closing Date, or settlement date, as applicable, the Company shall have furnished to the Representatives Representative such further information, certificates and documents as the Representatives Representative may reasonably request.
(hj) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(ik) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital MarketNasdaq, satisfactory evidence of which shall have been provided to the RepresentativesRepresentative.
(jl) On or prior to the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Private Placement Warrant Purchase Agreement, the Insider Letters and Letter, the Registration Rights Agreement, the Anchor Subscription Agreements and the Services Agreement.
(km) At least one Business Day prior to the Closing DateDate and any settlement date, as applicable, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust AccountAccount such that the cumulative amount deposited into the Trust Account as of such Closing Date or such settlement date, as applicable, shall equal the product of the number of Units issued in the offering as of such Closing Date or such settlement date, as applicable, and the public offering price per Unit as set forth on the cover of the Prospectus.
(ln) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives Representative pursuant to Section 5(g) hereof shall have been issued as of the Closing DateDate or such settlement date, as applicable, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date;
(ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof;
(iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and
(v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the RepresentativesRepresentative, or the obligation of the Underwriters to purchase the Option Units on the applicable settlement date shall be cancelled, as applicable. 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 Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Sources: Underwriting Agreement (Tio Tech A)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any Option Closing Datesettlement date pursuant to Section 3 hereof, 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 their obligations hereunder and to the following additional conditions:
(a) The If filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any supplement theretosuch supplement, have been will be filed in the manner and within the time period required by Rule 424(b); 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 Company shall have requested and caused Weil, Gotshal & ▇▇▇▇ ▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representatives its opinions and negative assurance lettertheir opinion, each dated the Closing Date and addressed to the Representatives, in a the form reasonably acceptable attached hereto as Exhibit A.
(c) The Company shall have requested and caused ▇▇▇▇ ▇▇▇▇▇ LLP, tax counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives., in the form attached hereto as Exhibit B.
(cd) The Company shall have requested and caused ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, Maryland corporate counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, in the form attached hereto as Exhibit C.
(e) The Representatives shall have received from Ropes & ▇▇▇▇▇▇▇ Procter LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, each dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related such matters as the Representatives 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.
(df) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer or the President and the principal financial or accounting officer of the Company, on behalf of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary Statement, the Prospectus, any supplements to the Prospectus, the Prospectus and any amendment or supplement thereto, Disclosure Package and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) the Registration Statement has become effective under the Securities Act and 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 knowledgeKnowledge, threatened; and;
(iii) since the date of the most recent financial statements included in the Statutory Prospectus Prospectus, and the Prospectus (exclusive of any supplement thereto)document that is incorporated by reference therein, there has been no Material Adverse Effectmaterial adverse effect on the business, financial condition, results of operations, management, properties or prospects 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 Statutory Prospectus Disclosure Package and the Prospectus; and
(iv) they have carefully examined the Disclosure Package and the Prospectus and, in their opinion (exclusive A) as of the Closing Date, the Disclosure Package and the Prospectus did not include any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and (B) since the Applicable Time, no event has occurred which should have been set forth in a supplement thereto)or amendment to the Disclosure Package and the Prospectus.
(eg) The Company shall have requested and caused KPMG Ernst & Young LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, lettersa letter, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are a which letters shall cover, without limitation, the various financial statements and disclosures contained or incorporated by reference 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 accounting firm that is independent with respect to offerings as contemplated in the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and Statement on Auditing Standards No. 72, as well as confirming that they have performed a review of the audited any unaudited interim financial statements information of the Company for the period from June 29, 2020 (date of inception) through July 24, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time included or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included incorporated by reference in the Registration Statement, the Statutory Prospectus Disclosure Package and the Prospectus and reported in accordance with Statement on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretationAuditing Standards No. 100. References to the Prospectus in this paragraph (eg) include any supplement thereto at the date of the letter.
(fh) Subsequent to the Execution Time or, if earlier, the dates as of which information is given or incorporated by reference in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus ) and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (eg) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earningsbusiness, businessfinancial condition, results of operations, management, properties, assets, rights, operations, condition (financial or otherwise) properties or prospects of the CompanyCompany 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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus ) and the Prospectus (exclusive of any supplement thereto).
(gi) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(hj) The Securities shall have been listed and admitted and authorized for trading on the NYSE, and satisfactory evidence of such actions shall have been provided to the Representatives.
(k) FINRA shall not have raised any objection with respect to the fairness or and reasonableness of the underwriting or other terms and arrangements of the transactions contemplated hereby.
(i) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(j) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment under this Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement.
(k) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(g) hereof The Company shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery furnished to the Representatives on a letter in the applicable Option Closing Date form of the following:
(i) a certificate signed by the Chief Executive Officer Exhibit D hereto from each director and the principal financial or accounting executive officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date;
(ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof;
(iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially Company named in the same form Registration Statement and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and
(v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option SecuritiesProspectus. 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, negative assurance letters opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. 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 Ropes & ▇▇▇▇▇▇▇ Procter LLP, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company Fund and the Advisers contained herein as of the Execution Time, the Closing Date and any Option Closing Datesettlement date pursuant to Section 4 hereof, to the accuracy of the statements of the Company Fund and the Advisers made in any certificates pursuant to the provisions hereof, to the performance by the Company Fund or the Advisers of its their obligations hereunder and to the following additional conditions:
(a) The Prospectus, Prospectus and any supplement thereto, supplements thereto have been filed in the manner and within the time period required by Rule 424(b)497; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use or order pursuant to Section 8(e) of the 1940 Act shall have been issued and no proceedings for that purpose shall have been instituted or threatenedthreatened by the Commission, and any request of the Commission for additional information (to be included in the Registration Statement or Prospectus or otherwise) shall have been complied with in all material respects.
(b) The Company Fund shall have requested and caused Weil, Gotshal ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the CompanyFund, to have furnished to the Representatives its opinions and negative assurance letteropinion, each dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable substantially to the Representativeseffect set forth in Exhibit A. In rendering such opinion, such counsel may limit such opinion to matters involving the application of the laws of the State of Delaware, the State of New York and the federal laws of the United States. Such counsel may rely (A) as to matters involving the application of laws of the State of Delaware, to the extent they deem proper and specified in such opinion, upon the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A. or other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters, and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Fund and public officials. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date.
(c) You shall have received on the Closing Date an opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., Esq., Chief Counsel of the Adviser, dated the Closing Date and addressed to you, as Representatives of the several Underwriters, substantially to the effect set forth in Exhibit B. In rendering such opinion, such counsel may limit such opinion to matters involving the application of the federal laws of the United States. Such counsel may rely (A) as to matters involving the application of the laws of the State of Arizona, to the extent such counsel deems proper and specified in such opinion, upon the opinion of Squire, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P., or other counsel of good standing whom such counsel believes to be reliable and who are satisfactory to counsel for the Underwriters, (B) as to matters involving the application of laws of the State of New York, to the extent such counsel deems proper and specified in such opinion, upon the opinion of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, or other counsel of good standing whom such counsel believes to be reliable and who are satisfactory to counsel for the Underwriters and (C) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Fund, the Adviser and public officials. References to the Prospectus in this paragraph (c) shall also include any supplements thereto at the Closing Date.
(d) You shall have received on the Closing Date an opinion of [ ] [ING/SAB: please provide name], counsel for the Sub-Adviser, dated the Closing Date and addressed to you, as Representatives of the several Underwriters, substantially to the effect set forth in Exhibit C. In rendering such opinion, such counsel may rely (A) as to matters involving the application of the laws of any jurisdiction other than the laws of Hong Kong, to the extent such counsel deems proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters, (B) as to matters involving the application of the federal laws of the United States, on the opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., Esq., counsel to the Adviser, (C) as to matters involving the application of the laws of the State of New York, to the extent such counsel deems proper and specified in such opinion, upon the opinion of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, (D) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Fund, the Sub-Adviser and public officials. References to the Prospectus in this paragraph (d) shall also include any supplements thereto at the Closing Date.
(e) You shall have received on the Closing Date an opinion of [ ] [ING/SAB: please provide name], counsel for the Option Sub-Adviser, dated the Closing Date and addressed to you, as Representatives of the several Underwriters, substantially to the effect set forth in Exhibit D. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the laws of the Netherlands, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters, (B) as to matters involving the application of the federal laws of the United States, on the opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., Esq., counsel to the Adviser, (C) as to matters involving the application of the laws of the State of New York, to the extent such counsel deems proper and specified in such opinion, upon the opinion of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, (D) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Fund, the Option Sub-Adviser and public officials. References to the Prospectus in this paragraph (e) shall also include any supplements thereto at the Closing Date.
(f) The Representatives shall have received from Ropes ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, each dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, Preliminary Prospectus and the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company Fund and the Advisers shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(dg) The Company Each of the Fund and the Advisers shall have furnished to the Representatives a certificate of the Companycertificate, signed by the Chief Chairman of the Board or the President or Executive Officer Vice President and the principal financial or accounting officer of each of the CompanyFund and the Advisers, as the case may be, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement each Statement, the Preliminary Prospectus and the Prospectus, the Prospectus and any amendment amendments or supplement thereto, supplements thereto and this Agreement and that:
(i) the The representations and warranties of the Company Fund or the Advisers, as the case may be, in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has Fund or the Advisers, as the case may be, have complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no 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 CompanyFund’s or each of the Adviser’s knowledge, as the case may be, threatened; and
(iii) since Since the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) (with respect to the certificate of the Fund) and since the date of the Prospectus (exclusive of any supplements thereto) (with respect to the certificate of the Advisers), there has been no Material Adverse Effectmaterial adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Fund or each of the Advisers, as the case may be, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Preliminary Prospectus and the Prospectus (exclusive of any supplement thereto).
(eh) The Company Fund shall have requested and caused KPMG LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company accountants within the meaning of the Act and the Exchange 1940 Act and the applicable rules Rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from June 29, 2020 (date of inception) through July 24, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, Regulations and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Preliminary Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act, the 1940 Act and the related rules Rules and regulations adopted by the CommissionRegulations; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the CompanyFund) set forth in the Registration Statement, the Statutory Preliminary Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “CapitalizationSummary of Fund Expenses” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the CompanyFund, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (eh) include any supplement thereto at the date of the letter.
(fi) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus ) and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any material change or decrease specified in the letter or letters referred to in paragraph (eg) of this Section 6 7 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) ), prospects, earnings, business or prospects properties of the CompanyFund and each of the Advisers, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Preliminary Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Preliminary Prospectus and the Prospectus (exclusive of any supplement thereto).
(gj) The Securities shall have been listed and admitted and authorized for trading on the NYSE, and satisfactory evidence of such actions shall have been provided to the Representatives.
(k) Prior to the Closing Date, the Company Fund and the Advisers shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(h) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(i) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(j) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement.
(k) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(g) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date;
(ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof;
(iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and
(v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. If any of the conditions specified in this Section 6 7 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions, negative assurance letters opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company Fund in writing or by telephone or facsimile confirmed in writing. .
(m) The documents required to be delivered by this Section 6 7 shall be delivered at the office of Ropes ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Sources: Underwriting Agreement (ING Asia Pacific High Dividend Equity Income Fund)