THE SUBSCRIPTION AGREEMENT DEFINES THE CONDITIONS UNDER WHICH the sub-authors purchase and distribute to the public the proposed titles. The issuer`s legal assistance and the underwriter`s legal counsel play a key role in negotiating important provisions of the subscription agreement that have a significant impact on the offer. Below are 10 practical tips to consider when designing and negotiating an underwriting contract. In the context of a registered offer of securities, the sub-authors of the offer generally enter into a subscription agreement with the issuer of the securities and any selling shareholders. The underwriter lead`s lawyer is expected to have the first draft of the underwriting agreement. A good starting point would be the form of the lead underwriter`s underwriting agreement, which contains the assurances, guarantees and covenants sought by the underwriter in general. The form can then be adapted to the specific facts and circumstances and negotiated with the issuer`s lawyer, who may require carve-outs, changes in the language of certain insurances or guarantees or changes to key definitions. When adapting the subscription agreement of a lead underwriter, consider whether the offer concerns the securities of a domestic or foreign issuer, whether the offer involves the sale of shareholders and whether the offer is an IPO of the issuer or a follow-up offer. For a follow-up offer, it is often revealing to review the subscription agreements concluded by the issuer for previous offers. The issuer`s advisor should review the precedent by reviewing subscription agreements entered into in other offerings recently conducted by the same sub-author in the same industry, in order to judge the willingness of the songwriter and his advisor to respond to requests to amend the subscription agreement. A subscription agreement should define an event that causes a major adverse change (MAC) or a significant adverse effect (MAE).
Depending on the definition of these conditions, a breach of a guarantee or guarantee may lead to a MAC or MAE in the activity and operating results of the issuer and, therefore, allow the sub-authors to terminate the operation, since the appearance of the MAC or the AE has resulted in it not being feasible or advises against: continue the offer (usually called «market out»). The underwriter will want to expose as much as possible the MAC or MAE provision in order to allow the greatest possible flexibility to terminate the agreement in case of breach of a warranty or guarantee. Form subscription agreements may also include forward-looking language, which defines a MAC or EFA as a substantial change in the issuer`s outlook and gives sub-authors additional flexibility in the event of a breach that may not be significant at present, but could have significant negative repercussions in the future. The issuer may insist on limiting the definitions of MAC and MAE so as not to give sub-authors the freedom to move away from the transaction, and they may try to minimize or remove any language that gives sub-authors full latitude to decide for themselves whether a particular event has escalated to the level of a MAC or AED. The issuer may also try to strike a forward-looking language to prevent sub-perpetrators from termating a transaction as a result of an immaterial offence. Shareholder agreements are often used to protect and protect shareholders. In the absence of this agreement, it is possible that disputes and disagreements will arise between shareholders. The underwriters` lawyer generally insists that few or no changes to the indemnification and termination sections are made by the language contained in the underwriting contract form of the representative underwriter. Underwriters want as much flexibility as possible to opt out of the transaction in the event of termination and as much protection as possible in the event of a dispute.. . . .