REPRESENTATIONS AND WARRANTIES OF SELLING STOCKHOLDERS. Each Selling Stockholder, severally and not jointly, represents and warrants to, and agrees with each of the Underwriters as of the date hereof, the Closing Date and any Additional Closing Date that: (a) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of each Selling Stockholder. (b) Each of the Custody Agreement and Powers of Attorney, attached as Exhibit B hereto, ("Custody Agreement and Power of Attorney") signed by (i) such Selling Stockholder, (ii) LaSalle Bank National Association as custodian (in such capacity, the "Custodian"), and (iii) Xxxx X. Xxxxx (with respect to AAC Quad-C, Investors LLC) and Xxxxxx Xxxx (with respect to all other Selling Stockholders), as such Selling Stockholder's attorney-in-fact (in such capacity, the "Attorney-in-Fact"), has been duly and validly authorized, executed and delivered by the Selling Stockholder and is a valid and binding agreement of such Selling Stockholder, enforceable against him or it in accordance with its terms, except as the enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting the rights and remedies of creditors or by general equitable principles. (c) Each Selling Stockholder agrees that the Firm Shares and Additional Shares, if any, to be sold by such Selling Stockholder on deposit with the Custodian are subject to the interests of the Underwriters, that the arrangements made for such custody are to that extent irrevocable, and that the obligations of the Selling Stockholder hereunder shall not be terminated, except as provided in this Agreement or in the Custody Agreement and Power of Attorney, by any act of the Selling Stockholder, by operation of law or by the occurrence of any other event. If the Attorney-in-Fact should die or become incapacitated, or if any other event should occur, before the delivery of the Firm Shares or Additional Shares, if any, to be sold by such Selling Stockholder hereunder, the documents evidencing such Shares then on deposit with the Custodian shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether or not the Custodian shall have received notice thereof. (d) Each Selling Stockholder is the lawful owner of the Firm Shares and the Additional Shares, if any, to be sold by such Selling Stockholder hereunder, and upon sale and delivery of, and payment for, such Firm Shares and Additional Shares, if any, as provided herein, such Selling Stockholder will convey to the Underwriters good and marketable title to the Firm Shares and Additional Shares, if applicable, free and clear of all Liens. Certificates for all of the Shares to be sold by the Selling Stockholder hereunder, 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 with irrevocable conditional instructions to deliver such Shares to the Underwriters pursuant to this Agreement. (e) Each Selling Stockholder has good and valid title to all of the Firm Shares and Additional Shares, if any, to be sold by such Selling Stockholder hereunder and has the legal right and power and capacity, and all authorizations and approvals required by law to enter into this Agreement and the applicable Custody Agreement and Power of Attorney, to sell, transfer and deliver all of the Firm Shares and Additional Shares, if applicable, and to comply with his or its other obligations hereunder and thereunder. The Shares to be sold by each Selling Stockholder pursuant to this Agreement are certificated securities in registered form and are not held by or through any securities intermediary within the meaning of the Uniform Commercial Code as in effect in the State of New York (the "NYUCC"). Upon delivery to the Lead Manager of the certificates evidencing such Shares indorsed to the Lead Manager or indorsed in blank by an effective indorsement, the Lead Manager, on behalf of itself and the other Underwriters, will become a "protected purchaser" of the Shares (as defined in Section 8-303 of the NYUCC) and acquire such certificate (and the shares represented thereby) free of any adverse claims (as defined in Section 8-102(a)(1) of the NYUCC), assuming that neither the Lead Manager nor any other Underwriter has notice of any adverse claim. (f) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by such Selling Stockholder of this Agreement and the consummation by such Selling Stockholder of the transactions contemplated herein, except (i) such as may have been obtained under the Securities Act, (ii) such as may be required under the state securities laws or the blue sky laws or any jurisdiction in connection with the purchase and distribution of the Shares by the Underwriters and (iii) such other approvals as have been obtained. (g) There are no contracts, agreements or understandings between such Selling Shareholder and any person that would give rise to a valid claim against such Selling Shareholder, the Company, any Subsidiary or any Underwriter for a brokerage commission, finder's fee or other like payment in connection with this Offering. (h) The execution, delivery and performance of this Agreement, the Power of Attorney and the Custody Agreement by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby or the fulfillment of the terms hereof by such Selling Stockholder will not conflict with, result in a breach or violation of, or constitute a default under any law or the terms of any indenture or other agreement or instrument to which such Selling Stockholder is party or bound, or to which any of the property or assets of such Selling Stockholder is subject, nor will such actions result in any violation of the provisions of the charter or bylaws or certificate of formation or partnership agreement or the articles of partnership or trust agreement, as applicable, of such Selling Stockholder or, any judgment, order or decree applicable to such Selling Stockholder or any court or regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over such Selling Stockholder. (i) Such Selling Stockholder does not have any registration or other similar rights to have any equity or debt securities registered for sale by the Company under the Registration Statement or included in the offering of the Shares, except for such rights as have been waived or which are described in the Registration Statement and the Prospectus. (j) Such Selling Stockholder does not have, or has waived prior to the date hereof, any preemptive right, co-sale right or right of first refusal or other similar right to purchase any of the Shares, if any, that are to be sold to the Underwriters pursuant to this Agreement; and none of the Selling Stockholders owns any warrants, options or similar rights to acquire, and does not have any right or arrangement to acquire, any capital stock, right, warrants, options or other securities from the Company, other than those described in the Registration Statement and the Prospectus. (k) All information furnished by or on behalf of such Selling Stockholder in writing for use in the Registration Statement and Prospectus, and all information contained in the Registration Statement and Prospectus with respect to such Selling Stockholder, is true, correct, and complete in all material respects and does not and will not contain any untrue statement of a material fact. (l) Such Selling Stockholder has no reason to believe that the representations and warranties of the Company contained in Section 1 hereof are not true and correct, is familiar with the Registration Statement and Prospectus and has no knowledge of any material fact, condition or information not disclosed in the Registration Statement or Prospectus which has had or would have a Material Adverse Effect on the Company and its Subsidiaries, individually or taken as a whole, and is not prompted to sell any of the Shares by any information concerning the Company which is not set forth in the Registration Statement and the Prospectus. (m) Such Selling Stockholder has not taken and will not take, directly or indirectly, any action which is designed to or which has constituted or which would cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares. (n) Such Selling Stockholder has not distributed and will not distribute, prior to the later of the Additional Closing Date, if any, and the completion of the Underwriters' distribution of the Shares, any offering material in connection with the offering and sale of the Shares by such Selling Stockholder other than a Preliminary Prospectus, the Prospectus or the Registration Statement. (o) Such Selling Stockholder does not have any knowledge that the Registration Statement or Prospectus (or any amendment of supplement thereto) contains any untrue statement of material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading. (p) If such Selling Stockholder is a director or executive officer of the Company, such Such Selling Stockholder does not have any reason to believe that the Registration Statement or Prospectus (or any amendment of supplement thereto) contains any untrue statement of material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading. (q) 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. (r) The representations and warranties of such Selling Stockholder in such Selling Stockholder's Custody Agreement and Power of Attorney are and will be true and correct. Any certificate signed by any officer or other representative of any Selling Stockholder and delivered to the Underwriters or to counsel for the Underwriters pursuant to this Agreement shall be deemed to be a representation and warranty by such Selling Stockholder to the Underwriters as to the matters covered thereby.
Appears in 2 contracts
Samples: Underwriting Agreement (Asset Acceptance Capital Corp), Underwriting Agreement (Asset Acceptance Capital Corp)
REPRESENTATIONS AND WARRANTIES OF SELLING STOCKHOLDERS. Each Selling Stockholder, severally and not jointly, Stockholder represents and warrants to, and agrees with with, each of the Underwriters as of the date hereofUnderwriter, the Closing Date Company and any Additional Closing Date the Trust that:
(a) Such Selling Stockholder has full legal right, capacity, power and authority to enter into and perform his obligations under this Agreement, the Contract and Collateral Agreement to which he is a party and the agreement between the Selling Stockholders and Salomon Smith Barney relating to expenses of the Trust (xxx "XXXXXXXXXXXXX AGREEMENT").
(b) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of each Selling Stockholder.
(b) Each of the Custody Agreement and Powers of Attorney, attached as Exhibit B hereto, ("Custody Agreement and Power of Attorney") signed by (i) such Selling Stockholder, (ii) LaSalle Bank National Association as custodian (in such capacity. The Contract, the "Custodian")Collateral Agreement, and (iii) Xxxx X. Xxxxx (with respect the Reimbursement Agreement to AAC Quad-C, Investors LLC) which he is a party and Xxxxxx Xxxx (with respect to all other Selling Stockholders), as such Selling Stockholder's attorney-in-fact (in such capacity, the "Attorney-in-Fact"), has Reimbursement Agreement have been duly and validly authorized, executed and delivered by the such Selling Stockholder and, assuming due authorization, execution and is a delivery by the other parties thereto, are valid and binding agreement agreements of such Selling Stockholder, enforceable against him or it in accordance with its their terms, except as the enforcement thereof such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other insolvency and similar laws relating to or affecting the creditors' rights generally and remedies of creditors or by general equitable principles.
(c) Each Selling Stockholder agrees that the Firm Shares The execution and Additional Shares, if any, to be sold delivery by such Selling Stockholder on deposit with the Custodian are subject to the interests of this Agreement, and of the UnderwritersContract, that the arrangements made for such custody are to that extent irrevocable, and that the obligations of the Selling Stockholder hereunder shall not be terminated, except as provided in this Agreement or in the Custody Collateral Agreement and Power of Attorney, by any act of the Selling Stockholder, by operation of law or by the occurrence of any other event. If the Attorney-in-Fact should die or become incapacitated, or if any other event should occur, before the delivery of the Firm Shares or Additional Shares, if any, Reimbursement Agreement to be sold by such Selling Stockholder hereunder, the documents evidencing such Shares then on deposit with the Custodian shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether or not the Custodian shall have received notice thereof.
(d) Each Selling Stockholder which he is the lawful owner of the Firm Shares a party and the Additional Shares, if any, to be sold by such Selling Stockholder hereunder, and upon sale and delivery of, and payment for, such Firm Shares and Additional Shares, if any, as provided herein, such Selling Stockholder will convey to the Underwriters good and marketable title to the Firm Shares and Additional Shares, if applicable, free and clear of all Liens. Certificates for all of the Shares to be sold by the Selling Stockholder hereunder, 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 with irrevocable conditional instructions to deliver such Shares to the Underwriters pursuant to this Agreement.
(e) Each Selling Stockholder has good and valid title to all of the Firm Shares and Additional Shares, if any, to be sold by such Selling Stockholder hereunder and has the legal right and power and capacity, and all authorizations and approvals required by law to enter into this Agreement and the applicable Custody Agreement and Power of Attorney, to sell, transfer and deliver all of the Firm Shares and Additional Shares, if applicable, and to comply with his or its other obligations hereunder and thereunder. The Shares to be sold by each Selling Stockholder pursuant to this Agreement are certificated securities in registered form and are not held by or through any securities intermediary within the meaning of the Uniform Commercial Code as in effect in the State of New York (the "NYUCC"). Upon delivery to the Lead Manager of the certificates evidencing such Shares indorsed to the Lead Manager or indorsed in blank by an effective indorsement, the Lead Manager, on behalf of itself and the other Underwriters, will become a "protected purchaser" of the Shares (as defined in Section 8-303 of the NYUCC) and acquire such certificate (and the shares represented thereby) free of any adverse claims (as defined in Section 8-102(a)(1) of the NYUCC), assuming that neither the Lead Manager nor any other Underwriter has notice of any adverse claim.
(f) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by such Selling Stockholder of this Agreement his obligations hereunder and thereunder (including, without limitation, (i) the consummation pledge by such Selling Stockholder to the Trust of the transactions contemplated herein, except (i) a security interest in such as may have been obtained under the Securities ActSelling Stockholder's Shares pursuant to his Collateral Agreement, (ii) following an Acceleration Event (as defined in the Contracts), any action by the Collateral Agent to foreclose on such as may be required under Selling Stockholder's Shares and deliver such Shares to the state securities laws or Trust, and any action by the blue sky laws or any jurisdiction in connection with Trust to distribute such Shares to the purchase and distribution holders of the Shares by DECS pursuant to the Underwriters terms of the Trust Agreement and such Selling Stockholder's Collateral Agreement, and (iii) such other approvals if the Selling Stockholders do not elect the Cash Delivery Option or elect the Cash Delivery Option but fail thereafter to deliver cash as have been obtained.
(g) There are no contractsrequired by the Contracts, agreements or understandings between any action by the Collateral Agent to deliver such Selling Shareholder Stockholder's Shares to the Trust or by the Trust to distribute such Shares to the holders of the DECS pursuant to the terms of the Trust Agreement and any person that would give rise to a valid claim against such Selling ShareholderStockholder's Collateral Agreement) do not and will not, whether with or without the Companygiving of notice or passage of time or both, any Subsidiary or any Underwriter for a brokerage commission, finder's fee or other like payment in connection with this Offering.
(h) The execution, delivery and performance of this Agreement, the Power of Attorney and the Custody Agreement by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby or the fulfillment of the terms hereof by such Selling Stockholder will not conflict with, result in a breach or violation of, or constitute a default under under, any law contract, indenture, mortgage, deed of trust, loan or the terms of any indenture credit agreement, note or other agreement or instrument to which such Selling Stockholder is a party or boundby which he may be bound or any law, order, rule or to which any of the property or assets of such Selling Stockholder is subject, nor will such actions result in any violation of the provisions of the charter or bylaws or certificate of formation or partnership agreement or the articles of partnership or trust agreement, as applicable, of such Selling Stockholder or, any judgment, order or decree regulation applicable to such Selling Stockholder of any court, federal or any court or state regulatory body, administrative agency, agency or other governmental body or arbitrator having jurisdiction over such Selling Stockholder or his properties, except where such conflict, breach, violation or default would not have a material adverse effect on such Selling Stockholder. Upon the occurrence of any of the events listed in clauses (ii) and (iii) in the preceding sentence, the Shares referred to in such clauses will be free and clear of any restriction imposed on the Shares. Amounts received by such Selling Stockholder under the Contract to which it is a party at the Closing Date and, if any Option DECS are purchased, at the time of delivery thereof pursuant to Section 4(b), will not be used by such Selling Stockholder for the purpose, whether immediate, incidental or ultimate, of buying or carrying a margin stock, as such terms are defined in Regulation U promulgated by the Board of Governors of the Federal Reserve System.
(id) Such Selling Stockholder does not have any registration or other similar rights is now and on the Exchange Date will be the beneficial owner of the Shares to have any equity or debt securities registered for sale by the Company be sold under the Registration Statement or included in the offering Contract to which it is a party free and clear of the Sharesall liens, encumbrances, equities and claims, except for those created pursuant to the Collateral Agreement to which he is a party, and, assuming that the Trust acquires its interest in such rights as have been waived or which are described Shares in exchange for the Registration Statement Firm Purchase Price and the Prospectus.
Additional Purchase Price (jas defined in such Selling Stockholder's Collateral Agreement) in accordance with the terms of the Contract to which he is a party without notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code ("UCC")), on the Exchange Date the Trust will have acquired either such Selling Stockholder's Shares free of any adverse claim (within the meaning of Section 8-102(a)(1) of the UCC) or a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Shares, in accordance with the terms of the Contract to which such Selling Stockholder is a party. Such Selling Stockholder does not havehas the full right, or has waived prior power and authority, and all authorization and approvals required by law, to pledge and assign the Shares to be pledged and assigned by such Selling Stockholder pursuant to the date hereofCollateral Agreement to which he is a party. The sale, transfer and delivery of any preemptive rightShares to be delivered by such Selling Stockholder pursuant to the Contract to which he is a party is not, co-sale right or and at the time of delivery of such Shares will not be, subject to any right of first refusal or other similar right to purchase rights of any of the Shares, if any, that are to be sold to the Underwriters person pursuant to this Agreement; and none of the any contract to which such Selling Stockholders owns any warrantsStockholder is a party, options or similar rights to acquire, and does not have any right or arrangement to acquire, any capital stock, right, warrants, options or other securities from the Company, other than those described in the Registration Statement and the Prospectusby which he is bound.
(ke) All information At the respective times the Company Registration Statement, any Rule 462(b) Company Registration Statement become effective, at the Closing Date (and, if any Option DECS are purchased on a date other than the Closing Date, at Settlement Date, (A) neither the Company Registration Statement nor any amendment or supplement thereto includes or will include an untrue statement of a material fact or omits or will omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and (B) neither the Company Prospectus nor any amendment or supplement thereto includes or will include an untrue statement of a material fact or omits 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, HOWEVER, that the representations and warranties contained in this paragraph (e) apply only to statements or omissions relating to such Selling Stockholder furnished to the Company in writing by or on behalf of such Selling Stockholder in writing expressly for use in the Company Registration Statement and or Company Prospectus, and all information contained in the Registration Statement and Prospectus with respect to such Selling Stockholder, is true, correct, and complete in all material respects and does not and will not contain any untrue statement of a material fact.
(lf) Such Selling Stockholder has no reason to believe that the representations hereby repeats and warranties of the Company contained in Section 1 hereof are not true and correct, is familiar with the Registration Statement and Prospectus and has no knowledge of any material fact, condition or information not disclosed in the Registration Statement or Prospectus which has had or would have a Material Adverse Effect on the Company and its Subsidiaries, individually or taken confirms as a whole, and is not prompted to sell any of the Shares by any information concerning the Company which is not if set forth in full herein each of the Registration Statement representations, warranties, guarantees and agreements made by him in the Contract and the ProspectusCollateral Agreement to which he is a party and agrees that the representations, warranties, guarantees and agreements therein and herein are made for the benefit of, and may be relied upon by, (i) the Underwriters, and Cleary, Gottlieb, Steen & Hamilton, counsel to the Undxxxxxxerx xxx (xi) xxx Comxxxx xxx Fulbright & Jaworski L.L.P., counsel to the Company.
(mx) Such Selling Stockholder has not taken and will not take, directly or indirectly, any action which is designed intended to or which has constituted or which would might reasonably be expected to cause or result result, under the Exchange Act or otherwise, in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the SharesShares or the DECS.
(nh) Such No consent, approval, license, authorization, order or validation of, and no filing, recording, or registration with, any court or governmental authority, agency or body is required for the compliance by such Selling Stockholder has not distributed and will not distribute, prior to the later with all of the Additional Closing Dateprovisions of this Agreement, if any, the Contract and the completion of Collateral Agreement to which he is a party and the Underwriters' distribution of Reimbursement Agreement, except such as have been obtained under the Shares, any offering material Act and such as may be required under the blue sky laws in connection with the offering purchase and sale distribution of the Shares DECS by such Selling Stockholder other than a Preliminary Prospectus, the Prospectus or Underwriters and the Registration Statement.
(o) Such Selling Stockholder does not have any knowledge that the Registration Statement or Prospectus (or any amendment distribution of supplement thereto) contains any untrue statement of material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading.
(p) If such Selling Stockholder is a director or executive officer of the Company, such Such Selling Stockholder does not have any reason to believe that the Registration Statement or Prospectus (or any amendment of supplement thereto) contains any untrue statement of material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading.
(q) 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.
(r) The representations and warranties of such Selling Stockholder in such Selling Stockholder's Custody Agreement Shares pursuant to the terms of the DECS in the manner contemplated herein and Power of Attorney are in the Trust Prospectus and will be true and correctthe Company Prospectus. Any certificate signed by any officer or other representative of any such Selling Stockholder and delivered to the Underwriters Representatives or to counsel for the Underwriters pursuant to this Agreement in connection with the offering of the DECS shall be deemed to be a representation and warranty by such Selling Stockholder to the Underwriters as to the matters covered thereby, to each Underwriter.
Appears in 1 contract
REPRESENTATIONS AND WARRANTIES OF SELLING STOCKHOLDERS. Each Selling Stockholder, Stockholder severally and not jointly, represents and warrants to, to the Company and agrees with each of the Underwriters Underwriter as of the date hereof, the Closing Date and any Additional Closing Date thatfollows:
(a) The representations and warranties to be set forth in Section 2 of the Underwriting Agreement (in substantially the form attached hereto) are true and correct;
(b) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of each Selling Stockholder.
(b) Each of the Custody Agreement and Powers of Attorney, attached as Exhibit B hereto, ("Custody Agreement and Power of Attorney") signed by (i) such Selling Stockholder, (ii) LaSalle Bank National Association as custodian (in such capacity, the "Custodian"), and (iii) Xxxx X. Xxxxx (with respect to AAC Quad-C, Investors LLC) and Xxxxxx Xxxx (with respect to all other Selling Stockholders), as such Selling Stockholder's attorney-in-fact (in such capacity, the "Attorney-in-Fact"), has been duly and validly authorized, executed and delivered by the Selling Stockholder and is constitutes a valid legal and binding agreement obligation of such the Selling Stockholder, enforceable against him or it in accordance with its terms, except as the enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting the rights and remedies of creditors or by general equitable principles.;
(c) Each The Selling Stockholder agrees that the Firm Shares has full legal right, capacity, power and Additional Shares, if anyauthority to execute this Agreement, to be sold by such Selling Stockholder on deposit with enter into the Custodian are subject to the interests of the Underwriters, that the arrangements made for such custody are to that extent irrevocable, and that the obligations of the Selling Stockholder hereunder shall not be terminated, except as provided in this Agreement or in the Custody Underwriting Agreement and Power of Attorneyto sell, by any act of transfer, assign and deliver the Selling Stockholder, by operation of law or by the occurrence of any other event. If the Attorney-in-Fact should die or become incapacitated, or if any other event should occur, before the delivery of the Firm Shares or Additional Shares, if any, to be sold by such Selling Stockholder hereunder, the documents evidencing such Shares then on deposit with the Custodian shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether or not the Custodian shall have received notice thereof.
(d) Each Selling Stockholder is the lawful owner of the Firm Shares and the Additional Shares, if any, to be sold by such Selling Stockholder hereunder, and upon sale and delivery of, and payment for, such Firm Shares and Additional Shares, if any, as provided herein, such Selling Stockholder will convey to the Underwriters good and marketable title to the Firm Shares and Additional Shares, if applicable, free and clear of all Liens. Certificates for all of the Shares Deposit Stock to be sold by the Selling Stockholder hereunder, 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 accordance with the Custodian with irrevocable conditional instructions Underwriting Agreement and valid and marketable title to deliver such Shares Deposit Stock will be passed to the Underwriters pursuant to this the Underwriting Agreement.;
(ed) Each The information concerning the Selling Stockholder has good and valid title to all of the Firm Shares and Additional Shares, if any, to which will be sold by such Selling Stockholder hereunder and has the legal right and power and capacity, and all authorizations and approvals required by law to enter into this Agreement and the applicable Custody Agreement and Power of Attorney, to sell, transfer and deliver all of the Firm Shares and Additional Shares, if applicable, and to comply with his or its other obligations hereunder and thereunder. The Shares to be sold by each Selling Stockholder pursuant to this Agreement are certificated securities in registered form and are not held by or through any securities intermediary within the meaning of the Uniform Commercial Code as in effect in the State of New York (the "NYUCC"). Upon delivery to the Lead Manager of the certificates evidencing such Shares indorsed to the Lead Manager or indorsed in blank by an effective indorsementpreliminary prospectus, the Lead ManagerRegistration Statement, on behalf of itself the final prospectus and the other Underwritersany amendments or supplements thereto will, will when they become a "protected purchaser" of the Shares (as defined in Section 8-303 of the NYUCC) and acquire such certificate (and the shares represented thereby) free of any adverse claims (as defined in Section 8-102(a)(1) of the NYUCC), assuming that neither the Lead Manager nor any other Underwriter has notice of any adverse claim.
(f) No consent, approval, authorization effective or order of any court or governmental agency or body is required for the execution, delivery and performance by such Selling Stockholder of this Agreement and the consummation by such Selling Stockholder of the transactions contemplated herein, except (i) such as may have been obtained under the Securities Act, (ii) such as may be required under the state securities laws or the blue sky laws or any jurisdiction in connection are filed with the purchase and distribution of the Shares by the Underwriters and (iii) such other approvals as have been obtained.
(g) There are no contracts, agreements or understandings between such Selling Shareholder and any person that would give rise to a valid claim against such Selling Shareholder, the Company, any Subsidiary or any Underwriter for a brokerage commission, finder's fee or other like payment in connection with this Offering.
(h) The execution, delivery and performance of this Agreement, the Power of Attorney and the Custody Agreement by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby or the fulfillment of the terms hereof by such Selling Stockholder will not conflict with, result in a breach or violation of, or constitute a default under any law or the terms of any indenture or other agreement or instrument to which such Selling Stockholder is party or bound, or to which any of the property or assets of such Selling Stockholder is subject, nor will such actions result in any violation of the provisions of the charter or bylaws or certificate of formation or partnership agreement or the articles of partnership or trust agreementCommission, as applicablethe case may be, of such Selling Stockholder or, any judgment, order or decree applicable to such Selling Stockholder or any court or regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over such Selling Stockholder.
(i) Such Selling Stockholder does not have any registration or other similar rights to have any equity or debt securities registered for sale by the Company under the Registration Statement or included in the offering of the Shares, except for such rights as have been waived or which are described in the Registration Statement and the Prospectus.
(j) Such Selling Stockholder does not have, or has waived prior to the date hereof, any preemptive right, co-sale right or right of first refusal or other similar right to purchase any of the Shares, if any, that are to be sold to the Underwriters pursuant to this Agreement; and none of the Selling Stockholders owns any warrants, options or similar rights to acquire, and does not have any right or arrangement to acquire, any capital stock, right, warrants, options or other securities from the Company, other than those described in the Registration Statement and the Prospectus.
(k) All information furnished by or on behalf of such Selling Stockholder in writing for use in the Registration Statement and Prospectus, and all information contained in the Registration Statement and Prospectus with respect to such Selling Stockholder, is true, correct, and complete conform in all material respects to the requirements of the Securities Act of 1933, as amended, and does not the rules and regulations of the Commission thereunder and will not contain any untrue statement of a material fact.fact or omit to state any material fact required to be therein or necessary to make statements therein not misleading; and
(le) Such The attention of the Selling Stockholder has no reason been directed to believe that the representations and warranties rules of the Company contained in Section 1 hereof are not true and correctCommission which prohibit Selling Stockholders from bidding for or purchasing any shares of the Common Stock, is familiar with or attempting to induce anyone else to bid for or purchase any such shares, or taking any other action which might tend to stabilize or raise the price of the shares of Common Stock, until the distribution of Common Stock pursuant to the Registration Statement and Prospectus and has no knowledge of any material fact, condition or information not disclosed in been completed; the Registration Statement or Prospectus which has had or would have a Material Adverse Effect on the Company and its Subsidiaries, individually or taken as a whole, and is not prompted to sell any of the Shares by any information concerning the Company which is not set forth in the Registration Statement and the Prospectus.
(m) Such Selling Stockholder has not taken and will not take, directly or indirectly, any action which would violate the foregoing rules. Each Selling Stockholder hereby further represents and warrants that the foregoing representations and warranties will be true and correct on the date the Underwriting Agreement is designed executed and at the First Delivery Date referred to or which has constituted or which would cause or result in the stabilization or manipulation Underwriting Agreement. The Selling 41 - 4 - Stockholders will immediately notify the Attorneys-in-Fact, the Company and the Underwriters of the price occurrence of any security event which shall cause the representations, warranties and agreements contained herein not to be true and correct during the period of the Company to facilitate the sale or resale Public Offering of the Shares.
(n) Such Selling Stockholder has not distributed and will not distribute, prior Common Stock. For purposes of rendering an opinion pursuant to the later Underwriting Agreement, Grovxx X. Xxxxxxxxxx, X.C. may rely on the representations and warranties of the Additional Closing Date, Selling Stockholders set forth herein and in the Underwriting Agreement as if any, said representations and the completion warranties had been set forth in a separate certificate addressed to said counsel at and as of the Underwriters' distribution Delivery Date; and for purposes of delivering any certificate on behalf of the Shares, any offering material Selling Stockholders which may be required in connection with the offering and sale delivery of the Shares by such Selling Stockholder other than a Preliminary ProspectusDeposit Stock, pursuant to the Underwriting Agreement, the Prospectus or Attorneys-in-Fact may rely on the Registration Statement.
(o) Such Selling Stockholder does not have any knowledge that the Registration Statement or Prospectus (or any amendment of supplement thereto) contains any untrue statement of material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading.
(p) If such Selling Stockholder is a director or executive officer of the Company, such Such Selling Stockholder does not have any reason to believe that the Registration Statement or Prospectus (or any amendment of supplement thereto) contains any untrue statement of material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading.
(q) 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.
(r) The representations and warranties of such the Selling Stockholder Stockholders set forth herein and in such Selling Stockholder's Custody the Underwriting Agreement as if said representations and Power of Attorney are and will be true and correct. Any warranties had been set forth in a separate certificate signed by any officer or other representative of any Selling Stockholder and delivered directed to the Underwriters or to counsel for Attorneys-in-Fact at the Underwriters pursuant to this Agreement shall be deemed to be a representation and warranty by such Selling Stockholder to the Underwriters as to the matters covered therebyDelivery Date.
Appears in 1 contract
Samples: Underwriting Agreement (Amerco /Nv/)
REPRESENTATIONS AND WARRANTIES OF SELLING STOCKHOLDERS. Each Selling Stockholder, severally and not jointly, Stockholder represents and warrants to, and agrees with with, each of the Underwriters as of the date hereofUnderwriter, the Closing Date Company and any Additional Closing Date the Trust that:
(a) Such Selling Stockholder has full legal right, capacity, power and authority to enter into and perform his obligations under this Agreement, the Contract and Collateral Agreement to which he is a party and the agreement between the Selling Stockholders and Xxxxxxx Xxxxx Xxxxxx relating to expenses of the Trust (the "REIMBURSEMENT AGREEMENT").
(b) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of each Selling Stockholder.
(b) Each of the Custody Agreement and Powers of Attorney, attached as Exhibit B hereto, ("Custody Agreement and Power of Attorney") signed by (i) such Selling Stockholder, (ii) LaSalle Bank National Association as custodian (in such capacityStockholder . The Contract, the "Custodian")Collateral Agreement, and (iii) Xxxx X. Xxxxx (with respect the Reimbursement Agreement to AAC Quad-C, Investors LLC) and Xxxxxx Xxxx (with respect to all other Selling Stockholders), as such Selling Stockholder's attorney-in-fact (in such capacity, the "Attorney-in-Fact"), has which he is a party have been duly and validly authorized, executed and delivered by the such Selling Stockholder and, assuming due authorization, execution and is a delivery by the other parties thereto, are valid and binding agreement agreements of such Selling StockholderStockholder , enforceable against him or it in accordance with its their terms, except as the enforcement thereof such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other insolvency and similar laws relating to or affecting the creditors' rights generally and remedies of creditors or by general equitable principles.
(c) Each Selling Stockholder agrees that the Firm Shares The execution and Additional Shares, if any, to be sold delivery by such Selling Stockholder on deposit with the Custodian are subject to the interests of this Agreement, and of the UnderwritersContract, that the arrangements made for such custody are to that extent irrevocable, and that the obligations of the Selling Stockholder hereunder shall not be terminated, except as provided in this Agreement or in the Custody Collateral Agreement and Power of Attorney, by any act of the Selling Stockholder, by operation of law or by the occurrence of any other event. If the Attorney-in-Fact should die or become incapacitated, or if any other event should occur, before the delivery of the Firm Shares or Additional Shares, if any, Reimbursement Agreement to be sold by such Selling Stockholder hereunder, the documents evidencing such Shares then on deposit with the Custodian shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether or not the Custodian shall have received notice thereof.
(d) Each Selling Stockholder which he is the lawful owner of the Firm Shares a party and the Additional Shares, if any, to be sold by such Selling Stockholder hereunder, and upon sale and delivery of, and payment for, such Firm Shares and Additional Shares, if any, as provided herein, such Selling Stockholder will convey to the Underwriters good and marketable title to the Firm Shares and Additional Shares, if applicable, free and clear of all Liens. Certificates for all of the Shares to be sold by the Selling Stockholder hereunder, 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 with irrevocable conditional instructions to deliver such Shares to the Underwriters pursuant to this Agreement.
(e) Each Selling Stockholder has good and valid title to all of the Firm Shares and Additional Shares, if any, to be sold by such Selling Stockholder hereunder and has the legal right and power and capacity, and all authorizations and approvals required by law to enter into this Agreement and the applicable Custody Agreement and Power of Attorney, to sell, transfer and deliver all of the Firm Shares and Additional Shares, if applicable, and to comply with his or its other obligations hereunder and thereunder. The Shares to be sold by each Selling Stockholder pursuant to this Agreement are certificated securities in registered form and are not held by or through any securities intermediary within the meaning of the Uniform Commercial Code as in effect in the State of New York (the "NYUCC"). Upon delivery to the Lead Manager of the certificates evidencing such Shares indorsed to the Lead Manager or indorsed in blank by an effective indorsement, the Lead Manager, on behalf of itself and the other Underwriters, will become a "protected purchaser" of the Shares (as defined in Section 8-303 of the NYUCC) and acquire such certificate (and the shares represented thereby) free of any adverse claims (as defined in Section 8-102(a)(1) of the NYUCC), assuming that neither the Lead Manager nor any other Underwriter has notice of any adverse claim.
(f) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by such Selling Stockholder of this Agreement his obligations hereunder and thereunder (including, without limitation, (i) the consummation pledge by such Selling Stockholder to the Trust of the transactions contemplated herein, except (i) a security interest in such as may have been obtained under the Securities ActSelling Stockholder's Shares pursuant to his Collateral Agreement, (ii) following an Acceleration Event (as defined in the Contracts), any action by the Collateral Agent to foreclose on such as may be required under Selling Stockholder's Shares and deliver such Shares to the state securities laws or Trust, and any action by the blue sky laws or any jurisdiction in connection with Trust to distribute such Shares to the purchase and distribution holders of the Shares by DECS pursuant to the Underwriters terms of the Trust Agreement and such Selling Stockholder's Collateral Agreement, and (iii) such other approvals if the Selling Stockholders do not elect the Cash Delivery Option or elect the Cash Delivery Option but fail thereafter to deliver cash as have been obtained.
(g) There are no contractsrequired by the Contracts, agreements or understandings between any action by the Collateral Agent to deliver such Selling Shareholder Stockholder's Shares to the Trust or by the Trust to distribute such Shares to the holders of the DECS pursuant to the terms of the Trust Agreement and any person that would give rise to a valid claim against such Selling ShareholderStockholder's Collateral Agreement) do not and will not, whether with or without the Companygiving of notice or passage of time or both, any Subsidiary or any Underwriter for a brokerage commission, finder's fee or other like payment in connection with this Offering.
(h) The execution, delivery and performance of this Agreement, the Power of Attorney and the Custody Agreement by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby or the fulfillment of the terms hereof by such Selling Stockholder will not conflict with, result in a breach or violation of, or constitute a default under under, any law contract, indenture, mortgage, deed of trust, loan or the terms of any indenture credit agreement, note or other agreement or instrument to which such Selling Stockholder is a party or boundby which he may be bound or any law, order, rule or to which any of the property or assets of such Selling Stockholder is subject, nor will such actions result in any violation of the provisions of the charter or bylaws or certificate of formation or partnership agreement or the articles of partnership or trust agreement, as applicable, of such Selling Stockholder or, any judgment, order or decree regulation applicable to such Selling Stockholder of any court, federal or any court or state regulatory body, administrative agency, agency or other governmental body or arbitrator having jurisdiction over such Selling Stockholder or his properties, except where such conflict, breach, violation or default would not have a material adverse effect on such Selling Stockholder. Upon the occurrence of any of the events listed in clauses (ii) and (iii) in the preceding sentence, the Shares referred to in such clauses will be free and clear of any restriction imposed on the Shares. Amounts received by such Selling Stockholder under the Contract to which it is a party at the Closing Date and, if any Option DECS are purchased, at the time of delivery thereof pursuant to Section 4(b), will not be used by such Selling Stockholder for the purpose, whether immediate, incidental or ultimate, of buying or carrying a margin stock, as such terms are defined in Regulation U promulgated by the Board of Governors of the Federal Reserve System.
(id) Such Selling Stockholder does not have any registration or other similar rights is now and on the Exchange Date will be the beneficial owner of the Shares to have any equity or debt securities registered for sale by the Company be sold under the Registration Statement or included in the offering Contract to which it is a party free and clear of the Sharesall liens, encumbrances, equities and claims, except for those created pursuant to the Collateral Agreement to which he is a party, and, assuming that the Trust acquires its interest in such rights as have been waived or which are described Shares in exchange for the Registration Statement Firm Purchase Price and the Prospectus.
Additional Purchase Price (jas defined in such Selling Stockholder's Collateral Agreement) in accordance with the terms of the Contract to which he is a party without notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code ("UCC")), on the Exchange --- Date the Trust will have acquired either such Selling Stockholder's Shares free of any adverse claim (within the meaning of Section 8-102(a)(1) of the UCC) or a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Shares, in accordance with the terms of the Contract to which such Selling Stockholder is a party. Such Selling Stockholder does not havehas the full right, or has waived prior power and authority, and all authorization and approvals required by law, to pledge and assign the Shares to be pledged and assigned by such Selling Stockholder pursuant to the date hereofCollateral Agreement to which he is a party. The sale, transfer and delivery of any preemptive rightShares to be delivered by such Selling Stockholder pursuant to the Contract to which he is a party is not, co-sale right or and at the time of delivery of such Shares will not be, subject to any right of first refusal or other similar right to purchase rights of any of the Shares, if any, that are to be sold to the Underwriters person pursuant to this Agreement; and none of the any contract to which such Selling Stockholders owns any warrantsStockholder is a party, options or similar rights to acquire, and does not have any right or arrangement to acquire, any capital stock, right, warrants, options or other securities from the Company, other than those described in the Registration Statement and the Prospectusby which he is bound.
(ke) All information At the respective times the Company Registration Statement, any Rule 462(b) Company Registration Statement become effective, at the Closing Date (and, if any Option DECS are purchased on a date other than the Closing Date, at Settlement Date, (A) neither the Company Registration Statement nor any amendment or supplement thereto includes or will include an untrue statement of a material fact or omits or will omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and (B) neither the Company Prospectus nor any amendment or supplement thereto includes or will include an untrue statement of a material fact or omits 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, HOWEVER, that the representations and warranties contained in this paragraph (e) apply only to statements or omissions relating to such Selling Stockholder furnished to the Company in writing by or on behalf of such Selling Stockholder in writing expressly for use in the Company Registration Statement and or Company Prospectus, and all information contained in the Registration Statement and Prospectus with respect to such Selling Stockholder, is true, correct, and complete in all material respects and does not and will not contain any untrue statement of a material fact.
(lf) Such Selling Stockholder has no reason hereby repeats and confirms as if set forth in full herein each of the representations, warranties, guarantees and agreements made by him in the Contract and the Collateral Agreement to believe which he is a party and agrees that the representations representations, warranties, guarantees and warranties of agreements therein and herein are made for the Company contained in Section 1 hereof are not true benefit of, and correctmay be relied upon by, is familiar with (i) the Registration Statement Underwriters, and Prospectus Xxxxxx, Xxxxxxxx, Xxxxx & Xxxxxxxx, counsel to the Underwriters and has no knowledge of any material fact, condition or information not disclosed in the Registration Statement or Prospectus which has had or would have a Material Adverse Effect on (ii) the Company and its SubsidiariesFulbright & Xxxxxxxx L.L.P., individually or taken as a whole, and is not prompted counsel to sell any of the Shares by any information concerning the Company which is not set forth in the Registration Statement and the ProspectusCompany.
(mg) Such Selling Stockholder has not taken and will not take, directly or indirectly, any action which is designed intended to or which has constituted or which would might reasonably be expected to cause or result result, under the Exchange Act or otherwise, in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the SharesShares or the DECS.
(nh) Such No consent, approval, license, authorization, order or validation of, and no filing, recording, or registration with, any court or governmental authority, agency or body is required for the compliance by such Selling Stockholder has not distributed and will not distribute, prior with all of the provisions applicable to the later Selling Stockholder of this Agreement, the Additional Closing Date, if any, Contract and the completion of Collateral Agreement to which he is a party and the Underwriters' distribution of Reimbursement Agreement, except such as have been obtained under the Shares, any offering material Act and such as may be required under the blue sky laws in connection with the offering purchase and sale distribution of the Shares DECS by such Selling Stockholder other than a Preliminary Prospectus, the Prospectus Underwriters or the Registration Statement.
(o) Such Selling Stockholder does not have any knowledge that the Registration Statement or Prospectus (or any amendment distribution of supplement thereto) contains any untrue statement of material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading.
(p) If such Selling Stockholder is a director or executive officer of the Company, such Such Selling Stockholder does not have any reason to believe that the Registration Statement or Prospectus (or any amendment of supplement thereto) contains any untrue statement of material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading.
(q) 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.
(r) The representations and warranties of such Selling Stockholder in such Selling Stockholder's Custody Agreement Shares pursuant to the terms of the DECS in the manner contemplated herein and Power of Attorney are in the Trust Prospectus and will be true and correctthe Company Prospectus. Any certificate signed by any officer or other representative of any such Selling Stockholder and delivered to the Underwriters Representatives or to counsel for the Underwriters pursuant to this Agreement in connection with the offering of the DECS shall be deemed to be a representation and warranty by such Selling Stockholder to the Underwriters as to the matters covered thereby, to each Underwriter.
Appears in 1 contract
