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Common use of Representations and Warranties by the Selling Shareholders Clause in Contracts

Representations and Warranties by the Selling Shareholders. Each Selling Shareholder severally and not jointly represents and warrants to each Underwriter as of the date hereof, as of the Closing Time, and, if the Selling Shareholder is selling Option Securities on a Date of Delivery, as of each such Date of Delivery, and agrees with each Underwriter, as follows: (i) Such Selling Shareholder has reviewed and is familiar with the Registration Statement and the Prospectuses and the Prospectuses do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, provided that the representations and warranties made in this paragraph (i) shall be only with respect to the information furnished in writing by or on behalf of Such Shareholder expressly for use in the Registration Statement (or any amendment thereto). (ii) Such Selling Shareholder has full right, power and authority to execute, deliver and perform its obligations under this Agreement, the International Purchase Agreement and the Power of Attorney and Custody Agreement, and to sell, transfer and deliver the Securities pursuant to this Agreement; and this Agreement, the International Purchase Agreement and the Power of Attorney and Custody Agreement have been duly authorized, executed and delivered by or on behalf of such Selling Shareholder and constitutes a valid and binding agreement of such Selling Shareholder, enforceable against such Selling Shareholder in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization or other similar laws relating to or affecting enforcement of creditors' rights generally or by general principles of equity. (iii) There is no action, suit or proceeding before or by any government, governmental instrumentality or court, domestic or foreign, now pending or, to the knowledge of such Selling Shareholder, threatened, to which such Selling Shareholder is or would be a party or of which the property of such Selling Shareholder is or may be subject, that (i) seeks to restrain, enjoin, prevent the consummation of or otherwise challenge the sale of Securities by such Selling Shareholder or any of the other transactions contemplated hereby or (ii) questions the legality or validity of any such transactions or seeks to recover damages or obtain other relief in connection with any such transactions. (iv) No filing, authorization, approval, consent, license, order, registration or qualification of or with any government, governmental instrumentality or court (other than under the 1933 Act and the 1933 Act Regulations and the securities or blue sky laws of the various states in connection with the sale of the Securities), domestic or foreign, is required by reason of facts specifically pertaining to such Selling shareholder or its legal or regulatory status in connection with the due authorization, execution and delivery by such Selling Shareholder of this Agreement, the International Purchase Agreement or the Power of Attorney and Custody Agreement and the valid sale and delivery of the Securities to be sold by such Selling Shareholder hereunder and thereunder. (v) The execution, delivery and performance of this Agreement, the International Purchase Agreement and the Power of Attorney and Custody Agreement by such Selling Shareholder, the sale of the Securities by such Selling Shareholder hereunder and thereunder, the consummation by such Selling Shareholder of the transactions herein and therein contemplated and the compliance by such Selling Shareholder with all the provisions of this Agreement, the International Purchase Agreement and the Power of Attorney and Custody Agreement will not result in a violation of the charter or bylaws of such Selling Shareholders which are corporations or the partnership agreement or certificate of limited partnership, if applicable, of such Selling Shareholders which are partnerships and will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any material agreement or instrument to which such Selling Shareholder is a party or by which such Selling Shareholder is bound, nor will such action result in any violation of the provisions of any statute relating to such Selling Shareholders or its legal or regulatory status or any judgment, order, rule or regulation of any court or governmental agency or body having jurisdiction over such Selling Shareholder. (vi) Such Selling Shareholder has, and will at the Closing Time have, and, if such Selling Shareholder is selling Option Shares on a Date of Delivery, will on the Date of Delivery have, valid and marketable title to the Securities to be sold by the Selling Shareholder pursuant to this Agreement and the International Purchase Agreement, free and clear of any pledge, lien, security interest, charge, claim, equity or encumbrance of any kind; and, at the Closing Time and, if such Selling Shareholder is selling Option Shares on a Date of Delivery, at the Date of Delivery, upon delivery of the Securities to be sold by such Selling Shareholder and payment of the purchase price therefor as contemplated in this Agreement and the International Purchase Agreement, each of the Underwriters will receive good and marketable title to the Securities purchased by it from such Selling Shareholder, free and clear of any security interest, mortgage, pledge, lien, charge, claim, equity or encumbrance of any kind. (vii) Certificates for all of the Securities to be sold by such Selling Shareholder pursuant to this Agreement and the International Purchase Agreement, in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank with signatures guaranteed, have been placed in custody with the Custodian for delivery to the U.S. Underwriters pursuant to this Agreement and the International Managers pursuant to the International Purchase Agreement. (viii) Such Selling Shareholder has not taken and will not take, directly or indirectly, any action designed to, or that might reasonably be expected to, cause or result in stabilization or manipulation of the price of the Common Stock; and such Selling Shareholder has not distributed and will not distribute any prospectus (as such term is defined in the 1933 Act and the 1933 Act Regulations) in connection with the offering and sale of the Securities other than any preliminary prospectus filed with the Commission or the Prospectuses or other material permitted by the 1933 Act or the 1933 Act Regulations. (ix) Except as described in the Registration Statement and the Prospectuses, neither such Selling Stockholder nor any of its affiliates directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, or has any other association with (within the meaning of Article I, Section 1(m) of the By-laws of the National Association of Securities Dealers, Inc.), any member firm of the National Association of Securities Dealers, Inc.

Appears in 2 contracts

Samples: u.s. Purchase Agreement (Mettler Toledo International Inc/), u.s. Purchase Agreement (Mettler Toledo International Inc/)

Representations and Warranties by the Selling Shareholders. Each Selling Shareholder severally and not jointly represents and warrants to each Underwriter as of the date hereof, as of the Closing Time, and, if the Selling Shareholder is selling Option Securities on a Date of Delivery, as of each such Date of Delivery, and agrees with each Underwriter, as follows: (i) Such Selling Shareholder has reviewed and is familiar with the Registration Statement and the Prospectuses and the Prospectuses do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, provided that the representations and warranties made in this paragraph (i) shall be only with respect to the information furnished in writing by or on behalf of Such Shareholder expressly for use in the Registration Statement (or any amendment thereto). (ii) Such Selling Shareholder has full right, power and authority to execute, deliver and perform its obligations under this Agreement, the International U.S. Purchase Agreement and the Power of Attorney and Custody Agreement, and to sell, transfer and deliver the Securities pursuant to this Agreement; and this Agreement, the International U.S. Purchase Agreement and the Power of Attorney and Custody Agreement have been duly authorized, executed and delivered by or on behalf of such Selling Shareholder and constitutes a valid and binding agreement of such Selling Shareholder, enforceable against such Selling Shareholder in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization or other similar laws relating to or affecting enforcement of creditors' rights generally or by general principles of equity. (iii) There is no action, suit or proceeding before or by any government, governmental instrumentality or court, domestic or foreign, now pending or, to the knowledge of such Selling Shareholder, threatened, to which such Selling Shareholder is or would be a party or of which the property of such Selling Shareholder is or may be subject, that (i) seeks to restrain, enjoin, prevent the consummation of or otherwise challenge the sale of Securities by such Selling Shareholder or any of the other transactions contemplated hereby or (ii) questions the legality or validity of any such transactions or seeks to recover damages or obtain other relief in connection with any such transactions. (iv) No filing, authorization, approval, consent, license, order, registration or qualification of or with any government, governmental instrumentality or court (other than under the 1933 Act and the 1933 Act Regulations and the securities or blue sky laws of the various states in connection with the sale of the Securities), domestic or foreign, is required by reason of facts specifically pertaining to such Selling shareholder or its legal or regulatory status in connection with the due authorization, execution and delivery by such Selling Shareholder of this Agreement, the International U.S. Purchase Agreement or the Power of Attorney and Custody Agreement and the valid sale and delivery of the Securities to be sold by such Selling Shareholder hereunder and thereunder. (v) The execution, delivery and performance of this Agreement, the International U.S. Purchase Agreement and the Power of Attorney and Custody Agreement by such Selling Shareholder, the sale of the Securities by such Selling Shareholder hereunder and thereunder, the consummation by such Selling Shareholder of the transactions herein and therein contemplated and the compliance by such Selling Shareholder with all the provisions of this Agreement, the International U.S. Purchase Agreement and the Power of Attorney and Custody Agreement will not result in a violation of the charter or bylaws of such Selling Shareholders which are corporations or the partnership agreement or certificate of limited partnership, if applicable, of such Selling Shareholders which are partnerships and will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any material agreement or instrument to which such Selling Shareholder is a party or by which such Selling Shareholder is bound, nor will such action result in any violation of the provisions of any statute relating to such Selling Shareholders or its legal or regulatory status or any judgment, order, rule or regulation of any court or governmental agency or body having jurisdiction over such Selling Shareholder. (vi) Such Selling Shareholder has, and will at the Closing Time have, and, if such Selling Shareholder is selling Option Shares on a Date of Delivery, will on the Date of Delivery have, valid and marketable title to the Securities to be sold by the Selling Shareholder pursuant to this Agreement and the International U.S. Purchase Agreement, free and clear of any pledge, lien, security interest, charge, claim, equity or encumbrance of any kind; and, at the Closing Time and, if such Selling Shareholder is selling Option Shares on a Date of Delivery, at the Date of Delivery, upon delivery of the Securities to be sold by such Selling Shareholder and payment of the purchase price therefor as contemplated in this Agreement and the International U.S. Purchase Agreement, each of the Underwriters will receive good and marketable title to the Securities purchased by it from such Selling Shareholder, free and clear of any security interest, mortgage, pledge, lien, charge, claim, equity or encumbrance of any kind. (vii) Certificates for all of the Securities to be sold by such Selling Shareholder pursuant to this Agreement and the International U.S. Purchase Agreement, in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank with signatures guaranteed, have been placed in custody with the Custodian for delivery to the U.S. Underwriters International Managers pursuant to this Agreement and the International Managers U.S. Underwriters pursuant to the International U.S. Purchase Agreement. (viii) Such Selling Shareholder has not taken and will not take, directly or indirectly, any action designed to, or that might reasonably be expected to, cause or result in stabilization or manipulation of the price of the Common Stock; and such Selling Shareholder has not distributed and will not distribute any prospectus (as such term is defined in the 1933 Act and the 1933 Act Regulations) in connection with the offering and sale of the Securities other than any preliminary prospectus filed with the Commission or the Prospectuses or other material permitted by the 1933 Act or the 1933 Act Regulations. (ix) Except as described in the Registration Statement and the Prospectuses, neither such Selling Stockholder nor any of its affiliates directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, or has any other association with (within the meaning of Article I, Section 1(m) of the By-laws of the National Association of Securities Dealers, Inc.), any member firm of the National Association of Securities Dealers, Inc.

Appears in 1 contract

Samples: International Purchase Agreement (Mettler Toledo International Inc/)

Representations and Warranties by the Selling Shareholders. Each of the Selling Shareholder Shareholders severally and not jointly represents and warrants to each Underwriter as of the date hereof, as of the Closing Time, Time and, if the Selling Shareholder is selling Option Securities Securities, on a Date of Delivery, as of each such Date of Delivery, and agrees with with, each Underwriter, Underwriter as follows: (i) Such Selling Shareholder has no actual knowledge that the representations and warranties of the Company contained in Section 1(a) are not true and correct in all material respects; and such Selling Shareholder has reviewed the Registration Statement as originally filed with the Commission and is familiar with the preliminary prospectus contained therein and has no actual knowledge that such preliminary prospectus includes an untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. (ii) When the Registration Statement shall become effective and at all times subsequent thereto up to the Closing Time, (A) such parts of the Registration Statement and any amendments and supplements thereto as were provided by such Selling Shareholder specifically for use in the Prospectuses Registration Statement and the Prospectuses do that refer to such Selling Shareholder will not contain any an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (B) such parts of the Prospectus as were provided by such Selling Shareholder specifically for use in the Registration Statement and that refer to such Selling Shareholder will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, provided that the representations and warranties made in this paragraph (i) shall be only with respect to the information furnished in writing by or on behalf of Such Shareholder expressly for use in the Registration Statement (or any amendment thereto). (iiiii) Such Selling Shareholder This Agreement has full right, power and authority to execute, deliver and perform its obligations under this Agreement, the International Purchase Agreement and the Power of Attorney and Custody Agreement, and to sell, transfer and deliver the Securities pursuant to this Agreement; and this Agreement, the International Purchase Agreement and the Power of Attorney and Custody Agreement have been duly authorized, executed and delivered by or on behalf of such Selling Shareholder and constitutes a valid and binding agreement Shareholder. (iv) To the best knowledge of such Selling Shareholder, enforceable against such Selling Shareholder in accordance with its termsno authorization, except as enforcement thereof may be limited by bankruptcyapproval, insolvency, reorganization consent or other similar laws relating to or affecting enforcement license of creditors' rights generally or by general principles of equity. (iii) There is no action, suit or proceeding before or by any government, governmental instrumentality or court, domestic or foreign, now pending or, to the knowledge of such Selling Shareholder, threatened, to which such Selling Shareholder is or would be a party or of which the property of such Selling Shareholder is or may be subject, that (i) seeks to restrain, enjoin, prevent the consummation of or otherwise challenge the sale of Securities by such Selling Shareholder or any of the other transactions contemplated hereby or (ii) questions the legality or validity of any such transactions or seeks to recover damages or obtain other relief in connection with any such transactions. (iv) No filing, authorization, approval, consent, license, order, registration or qualification of or with any government, governmental instrumentality or court foreign (other than under the 1933 Act and the 1933 Act Regulations and the securities or blue sky Blue Sky laws of the various states in connection with states), is required for the sale and delivery of the Securities), domestic or foreign, is required by reason of facts specifically pertaining to except such Selling shareholder or its legal or regulatory status in connection with the due authorization, as have been obtained. (v) The execution and delivery of this Agreement and the sale by such Selling Shareholder of the Securities to be delivered by him pursuant to this AgreementAgreement will not result in a breach by such Selling Shareholder of, or constitute a default by such Selling Shareholder under, any agreement, instrument, decree, judgment or order to which such Selling Shareholder is a party, to which the International Purchase Agreement properties of such Selling Shareholder may be subject or by which such Selling Shareholder may be bound, except for breaches or defaults that would not be material to the Selling Shareholder or the Power transactions contemplated hereby. (vi) The Securities to be sold by such Selling Shareholder pursuant to this Agreement are certificated securities in registered form and are not held in any securities account or by or through any securities intermediary within the meaning of Attorney the Uniform Commercial Code as in effect in the State of New York ("NYUCC"). Such Selling Shareholder has, and, at the Closing Time and, if any Option Securities are purchased, on the Date of Delivery, will have, full right, power and Custody Agreement authority to hold, sell, transfer and the valid sale and delivery of deliver the Securities to be sold by such Selling Shareholder hereunder and thereunder. (v) The execution, delivery and performance of this Agreement, the International Purchase Agreement and the Power of Attorney and Custody Agreement by such Selling Shareholder, the sale of the Securities by such Selling Shareholder hereunder and thereunder, the consummation by such Selling Shareholder of the transactions herein and therein contemplated and the compliance by such Selling Shareholder with all the provisions of this Agreement, the International Purchase Agreement and the Power of Attorney and Custody Agreement will not result in a violation of the charter or bylaws of such Selling Shareholders which are corporations or the partnership agreement or certificate of limited partnership, if applicable, of such Selling Shareholders which are partnerships and will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any material agreement or instrument to which such Selling Shareholder is a party or by which such Selling Shareholder is bound, nor will such action result in any violation of the provisions of any statute relating to such Selling Shareholders or its legal or regulatory status or any judgment, order, rule or regulation of any court or governmental agency or body having jurisdiction over such Selling Shareholder. (vi) Such Selling Shareholder has, and will at the Closing Time have, and, if such Selling Shareholder is selling Option Shares on a Date of Delivery, will on the Date of Delivery have, valid and marketable title to the Securities to be sold by the Selling Shareholder pursuant to this Agreement Agreement; and upon the International Purchase Agreement, free Underwriters' acquiring possession of such Securities (or an agent's acquiring possession of such Securities on the Underwriters' behalf) and clear of any pledge, lien, security interest, charge, claim, equity or encumbrance of any kind; and, at the Closing Time and, if such Selling Shareholder is selling Option Shares on a Date of Delivery, at the Date of Delivery, upon delivery of the Securities to be sold by such Selling Shareholder and payment of paying the purchase price therefor as contemplated in this Agreement and the International Purchase Agreementherein contemplated, each of the Underwriters will receive good and marketable title to the acquire their respective interests in such Securities purchased by it from (including, without limitation, all rights that such Selling Shareholder, Shareholder had or has the power to transfer in such Securities) free and clear of any security interest, mortgage, pledge, lien, charge, adverse claim, equity or encumbrance of any kind. (vii) Certificates for all of the Securities to be sold by such Selling Shareholder pursuant to this Agreement and the International Purchase Agreement, in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank blank, with signatures guaranteed, have been placed in custody with the Custodian for delivery custodian under the Power of Attorney and Custody Agreement with irrevocable conditional instructions to deliver such Securities to the U.S. Underwriters pursuant to this Agreement and the International Managers pursuant to the International Purchase Agreement. (viii) For a period of 90 days from the date hereof, such Selling Shareholder will not, and the Selling Shareholders will cause Capital Yield Corporation, Equity Group Holdings LLC, Equity Group Holdings II LLC and Equity Group Holdings III LLC not to, without the prior written consent of Xxxxxxx Xxxxx, (i) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase or otherwise transfer or dispose of, directly or indirectly, any share of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock or file any registration statement under the 1933 Act with respect to any of the foregoing or (ii) enter into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Common Stock, whether any such swap or transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise; provided that during such period such Selling Shareholder, Capital Yield -------- Corporation, Equity Group Holdings LLC, Equity Group Holdings II LLC and Equity Group Holdings III LLC may make gifts of shares of Common Share or securities convertible into Common Share or may transfer to its affiliates shares of Common Share or securities convertible into Common Share upon the condition that such donees or transferees agree to be bound by the foregoing restriction in the same manner as it applied to such Selling Shareholder, Capital Yield Corporation, Equity Group Holdings LLC, Equity Group Holdings II LLC and Equity Group Holdings III LLC, and provided, -------- further that the foregoing restrictions shall not apply to the Securities ------- to be sold hereunder or any shares of Common Stock which have been pledged under credit arrangements entered into with affiliates of the Underwriters, including Bank of Nova Scotia and other participating financial institutions under such credit arrangements. (ix) Such Selling Shareholder has not taken and will not take, directly or indirectly, any action designed to, or that might be reasonably be expected to, cause or result in stabilization or manipulation of the price of the Common StockShare; and such Selling Shareholder has not distributed and will not distribute any prospectus (as such term is defined in the 1933 Act and the 1933 Act Regulations) or other offering material in connection with the offering and sale of the Securities other than any preliminary prospectus filed with the Commission or the Prospectuses Prospectus or other material permitted by the 1933 Act or the 1933 Act Regulations. (ix) Except as described in the Registration Statement and the Prospectuses, neither such Selling Stockholder nor any of its affiliates directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, or has any other association with (within the meaning of Article I, Section 1(m) of the By-laws of the National Association of Securities Dealers, Inc.), any member firm of the National Association of Securities Dealers, Inc.

Appears in 1 contract

Samples: Purchase Agreement (Danaher Corp /De/)

Representations and Warranties by the Selling Shareholders. Each Selling Shareholder Shareholder, severally and not jointly jointly, represents and warrants to each Underwriter as of at the date hereof, as of the Applicable Time and the Closing Time, and, if the Selling Shareholder is selling Option Securities on a Date of Delivery, as of each such Date of Delivery, and agrees with each Underwriter, as follows: (i) All consents, approvals, authorizations and orders necessary for the execution and delivery by such Selling Shareholder of this Agreement and for the sale and delivery of the Shares to be sold by such Selling Shareholder hereunder, have been obtained; and such Selling Shareholder has full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver the Shares to be sold by such Selling Shareholder hereunder, in each case except where such conflict, breach or default could not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to consummate the transactions contemplated herein; (ii) This Agreement has been duly authorized, executed and delivered by such Selling Shareholder and constitutes the legal, valid and binding obligation of such Selling Shareholder; (iii) Such Selling Shareholder, has been duly incorporated (or organized) and is validly existing as a corporation (or other organization) in good standing under the laws of its jurisdiction (or organization); (iv) The sale of the Shares to be sold by such Selling Shareholder hereunder, the execution of this Agreement by such Selling Shareholder and the compliance by such Selling Shareholder with all of the provisions of this Agreement and the consummation of the transactions herein and therein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, (A) any indenture, mortgage, deed of trust, loan agreement, note, lease or other agreement or instrument to which such Selling Shareholder or its affiliates is a party or by which such Selling Shareholder is bound or to which any of the property or assets of such Selling Shareholder is subject, (B) the certificate or articles of incorporation or by-laws (or other organization documents) of such Selling Shareholder, or (C) any statute or any order, law, rule, regulation or decree of any court or governmental agency or body having jurisdiction over such Selling Shareholder or any of its property or assets; and no consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the sale of the Shares to be sold by such Selling Shareholder hereunder or the consummation by such Selling Shareholder of the transactions contemplated by this Agreement, except the registration under the Securities Act of the Shares, the filing of any Schedule 13D or Form 4s required by Section 16 of the Exchange Act, the approval by FINRA of the underwriting terms and arrangements and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Shares by the Underwriters, except in the case of (A) and (C) where such conflict, breach or default could not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to consummate the transactions contemplated herein; (v) Such Selling Shareholder has, and immediately prior to the Closing Date will have, good and valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares subject to sale by such Selling Shareholder pursuant to this Agreement on such date free and clear of all security interests, claims, liens, equities or other encumbrances; (vi) Upon payment for the Shares to be sold by such Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, such Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its articles of incorporation, bylaws and applicable law, rule or regulation, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC; (vii) Such Selling Shareholder has reviewed not taken and will not take, directly or indirectly, any action designed to cause or result in, or which constitutes or might reasonably be expected to constitute, the stabilization or manipulation of the price of the Shares or any reference security, whether to facilitate the sale or resale of the Shares or otherwise and has taken no action which could directly or indirectly violate Regulation M under the Exchange Act; (viii) There are no legal or governmental proceedings pending to which such Selling Shareholder is familiar with a party or of which any property of such Selling Shareholder is the subject which, if determined adversely to such Selling Shareholder, individually or in the aggregate, could prevent or impair the consummation of the transactions contemplated by this Agreement; and (A) At the respective times the Registration Statement and any post-effective amendments thereto became effective and at the Prospectuses Closing Date, the Registration Statement and the Prospectuses do any amendments and supplements (including any prospectus wrapper) thereto did not and will not contain any an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and (B) at the time the Pricing Prospectus, the Prospectus or any amendments or supplements thereto were issued and at the Closing Date, none of the Pricing Prospectus, the Prospectus nor any amendment or supplement thereto included or will include an untrue statement of a material fact or omitted or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, ; provided that the representations and warranties in clauses (A) and (B) above shall (X) only apply to statements or omissions made in this paragraph (i) shall be only reliance upon and in conformity with respect information relating to the information furnished in writing by or on behalf of Such Shareholder expressly for use in the Registration Statement (or any amendment thereto). (ii) Such such Selling Shareholder has full right, power and authority to execute, deliver and perform its obligations under this Agreement, the International Purchase Agreement and the Power of Attorney and Custody Agreement, and to sell, transfer and deliver the Securities pursuant to this Agreement; and this Agreement, the International Purchase Agreement and the Power of Attorney and Custody Agreement have been duly authorized, executed and delivered furnished by or on behalf of such Selling Shareholder expressly for use in the Registration Statement, the Pricing Disclosure Package or the Prospectus or any amendment or supplement thereto, it being understood and constitutes a valid and binding agreement agreed that such information consists only of the name of such Selling Shareholder, enforceable against the number of Shares to be sold by such Selling Shareholder and the address and other information with respect to such Selling Shareholder (excluding percentages) which appear in accordance the Pricing Prospectus in the table (and corresponding footnotes) under the caption “Selling Shareholders” (with its termsrespect to each Selling Shareholder, except as enforcement thereof may be limited the “Selling Shareholder Information”), and (Y) not apply to statements in or omissions from the Registration Statement or the Prospectus made in reliance upon and in strict conformity with information furnished to the Company in writing by bankruptcyany Underwriter through the Representative expressly for use in the Registration Statement or the Prospectus, insolvency, reorganization or other similar laws relating to or affecting enforcement of creditors' rights generally or it being understood and agreed that the only such information provided by general principles of equityany Underwriter is the Underwriter Information. (iiix) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions herein contemplated, the Selling Shareholder will deliver to you prior to or on the Closing Date a properly completed and executed United States Treasury Department Form W-9 or Form W-8, as applicable (or other applicable form or statement specified by Treasury Department regulations in lieu thereof); (xi) There is are no action, suit affiliations or proceeding before or by associations between any government, governmental instrumentality or court, domestic or foreign, now pending or, to member of the knowledge of FINRA and such Selling Shareholder, threatened, to which such Selling Shareholder is or would be a party or except as described in the Pricing Prospectus; none of which the property of such Selling Shareholder is or may be subject, that (i) seeks to restrain, enjoin, prevent the consummation of or otherwise challenge the sale of Securities proceeds received by such Selling Shareholder or any of the other transactions contemplated hereby or (ii) questions the legality or validity of any such transactions or seeks to recover damages or obtain other relief in connection with any such transactions. (iv) No filing, authorization, approval, consent, license, order, registration or qualification of or with any government, governmental instrumentality or court (other than under the 1933 Act and the 1933 Act Regulations and the securities or blue sky laws of the various states in connection with from the sale of the Securities), domestic or foreign, is required by reason of facts specifically pertaining to such Selling shareholder or its legal or regulatory status in connection with the due authorization, execution and delivery by such Selling Shareholder of this Agreement, the International Purchase Agreement or the Power of Attorney and Custody Agreement and the valid sale and delivery of the Securities Shares to be sold by such Selling Shareholder hereunder and thereunder.will be paid to a member of the FINRA or any affiliate of (or person “associated with,” as such terms are used in the rules of the FINRA) such member; (v) The execution, delivery and performance of this Agreement, the International Purchase Agreement and the Power of Attorney and Custody Agreement by such Selling Shareholder, the sale of the Securities by such Selling Shareholder hereunder and thereunder, the consummation by such Selling Shareholder of the transactions herein and therein contemplated and the compliance by such Selling Shareholder with all the provisions of this Agreement, the International Purchase Agreement and the Power of Attorney and Custody Agreement will not result in a violation of the charter or bylaws of such Selling Shareholders which are corporations or the partnership agreement or certificate of limited partnership, if applicable, of such Selling Shareholders which are partnerships and will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any material agreement or instrument to which such Selling Shareholder is a party or by which such Selling Shareholder is bound, nor will such action result in any violation of the provisions of any statute relating to such Selling Shareholders or its legal or regulatory status or any judgment, order, rule or regulation of any court or governmental agency or body having jurisdiction over such Selling Shareholder. (vixii) Such Selling Shareholder has, and will at is not prompted by any material non-public information concerning the Closing Time have, and, if such Selling Shareholder Company or any of its Subsidiaries that is selling Option not disclosed in the Pricing Prospectus to sell its Shares on a Date of Delivery, will on the Date of Delivery have, valid and marketable title to the Securities to be sold by the Selling Shareholder pursuant to this Agreement and the International Purchase Agreement, free and clear of any pledge, lien, security interest, charge, claim, equity or encumbrance of any kind; and, at the Closing Time and, if such . The Selling Shareholder is selling Option Shares on has a Date of Delivery, at the Date of Delivery, upon delivery of the Securities to be sold by such Selling Shareholder and payment of the purchase price therefor as contemplated in this Agreement and the International Purchase Agreement, reasonable basis for making each of the representations set forth in this SECTION 1(c). The Selling Shareholder acknowledges that the Underwriters will receive good and marketable title and, for purposes of the opinions to be delivered pursuant to SECTION 7 hereof, counsel to the Securities purchased by it from such Selling ShareholderCompany and counsel to the Underwriters, free may rely upon the accuracy and clear of any security interest, mortgage, pledge, lien, charge, claim, equity or encumbrance of any kind. (vii) Certificates for all truthfulness of the Securities foregoing representations and hereby consents to be sold by such Selling Shareholder pursuant to this Agreement and the International Purchase Agreement, in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank with signatures guaranteed, have been placed in custody with the Custodian for delivery to the U.S. Underwriters pursuant to this Agreement and the International Managers pursuant to the International Purchase Agreementreliance. (viii) Such Selling Shareholder has not taken and will not take, directly or indirectly, any action designed to, or that might reasonably be expected to, cause or result in stabilization or manipulation of the price of the Common Stock; and such Selling Shareholder has not distributed and will not distribute any prospectus (as such term is defined in the 1933 Act and the 1933 Act Regulations) in connection with the offering and sale of the Securities other than any preliminary prospectus filed with the Commission or the Prospectuses or other material permitted by the 1933 Act or the 1933 Act Regulations. (ix) Except as described in the Registration Statement and the Prospectuses, neither such Selling Stockholder nor any of its affiliates directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, or has any other association with (within the meaning of Article I, Section 1(m) of the By-laws of the National Association of Securities Dealers, Inc.), any member firm of the National Association of Securities Dealers, Inc.

Appears in 1 contract

Samples: Underwriting Agreement (Atlantic Capital Bancshares, Inc.)

Representations and Warranties by the Selling Shareholders. Each Selling Shareholder severally and not jointly represents and warrants to each Underwriter as of the date hereof, as of the Closing Time, and, if the Selling Shareholder is selling Option Securities on a Date of Delivery, as of each such Date of Delivery, and agrees with each Underwriter, as follows: (i) Such Selling Shareholder has reviewed and is familiar with the Registration Statement and the Prospectuses and the Prospectuses do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, provided that the representations and warranties made in this paragraph (i) shall be only with respect to the information furnished in writing by or on behalf of Such Shareholder expressly for use in the Registration Statement (or any amendment thereto). (ii) Such Selling Shareholder has full right, power and authority to execute, deliver and perform its obligations under this Agreement, the International U.S. Purchase Agreement and the Power of Attorney and Custody Agreement, and to sell, transfer and deliver the Securities pursuant to this Agreement; and this Agreement, the International U.S. Purchase Agreement and the Power of Attorney and Custody Agreement have been duly authorized, executed and delivered by or on behalf of such Selling Shareholder and constitutes a valid and binding agreement of such Selling Shareholder, enforceable against such Selling Shareholder in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization or other similar laws relating to or affecting enforcement of creditors' rights generally or by general principles of equity. (iii) There is no action, suit or proceeding before or by any government, governmental instrumentality or court, domestic or foreign, now pending or, to the knowledge of such Selling Shareholder, threatened, to which such Selling Shareholder is or would be a party or of which the property of such Selling Shareholder is or may be subject, that (i) seeks to restrain, enjoin, prevent the consummation of or otherwise challenge the sale of Securities by such Selling Shareholder or any of the other transactions contemplated hereby or (ii) questions the legality or validity of any such transactions or seeks to recover damages or obtain other relief in connection with any such transactions. (iv) No filing, authorization, approval, consent, license, order, registration or qualification of or with any government, governmental instrumentality or court (other than under the 1933 Act and the 1933 Act Regulations and the securities or blue sky laws of the various states in connection with the sale of the Securities), domestic or foreign, is required by reason of facts specifically pertaining to such Selling shareholder or its legal or regulatory status in connection with the due authorization, execution and delivery by such Selling Shareholder of this Agreement, the International Purchase Agreement or the Power of Attorney and Custody Agreement and the valid sale and delivery of the Securities to be sold by such Selling Shareholder hereunder and thereunder. (v) The execution, delivery and performance of this Agreement, the International Purchase Agreement and the Power of Attorney and Custody Agreement by such Selling Shareholder, the sale of the Securities by such Selling Shareholder hereunder and thereunder, the consummation by such Selling Shareholder of the transactions herein and therein contemplated and the compliance by such Selling Shareholder with all the provisions of this Agreement, the International Purchase Agreement and the Power of Attorney and Custody Agreement will not result in a violation of the charter or bylaws of such Selling Shareholders which are corporations or the partnership agreement or certificate of limited partnership, if applicable, of such Selling Shareholders which are partnerships and will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any material agreement or instrument to which such Selling Shareholder is a party or by which such Selling Shareholder is bound, nor will such action result in any violation of the provisions of any statute relating to such Selling Shareholders or its legal or regulatory status or any judgment, order, rule or regulation of any court or governmental agency or body having jurisdiction over such Selling Shareholder. (vi) Such Selling Shareholder has, and will at the Closing Time have, and, if such Selling Shareholder is selling Option Shares on a Date of Delivery, will on the Date of Delivery have, valid and marketable title to the Securities to be sold by the Selling Shareholder pursuant to this Agreement and the International Purchase Agreement, free and clear of any pledge, lien, security interest, charge, claim, equity or encumbrance of any kind; and, at the Closing Time and, if such Selling Shareholder is selling Option Shares on a Date of Delivery, at the Date of Delivery, upon delivery of the Securities to be sold by such Selling Shareholder and payment of the purchase price therefor as contemplated in this Agreement and the International Purchase Agreement, each of the Underwriters will receive good and marketable title to the Securities purchased by it from such Selling Shareholder, free and clear of any security interest, mortgage, pledge, lien, charge, claim, equity or encumbrance of any kind. (vii) Certificates for all of the Securities to be sold by such Selling Shareholder pursuant to this Agreement and the International Purchase Agreement, in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank with signatures guaranteed, have been placed in custody with the Custodian for delivery to the U.S. Underwriters pursuant to this Agreement and the International Managers pursuant to the International Purchase Agreement. (viii) Such Selling Shareholder has not taken and will not take, directly or indirectly, any action designed to, or that might reasonably be expected to, cause or result in stabilization or manipulation of the price of the Common Stock; and such Selling Shareholder has not distributed and will not distribute any prospectus (as such term is defined in the 1933 Act and the 1933 Act Regulations) in connection with the offering and sale of the Securities other than any preliminary prospectus filed with the Commission or the Prospectuses or other material permitted by the 1933 Act or the 1933 Act Regulations. (ix) Except as described in the Registration Statement and the Prospectuses, neither such Selling Stockholder nor any of its affiliates directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, or has any other association with (within the meaning of Article I, Section 1(m) of the By-laws of the National Association of Securities Dealers, Inc.), any member firm of the National Association of Securities Dealers, Inc.limited

Appears in 1 contract

Samples: International Purchase Agreement (Mettler Toledo International Inc/)