Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriters that: (a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder. (b) The execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement will not contravene any provision of applicable law, or the certificate of incorporation or by-laws of the Selling Shareholder (if the Selling Shareholder is a corporation), or any agreement or other instrument binding upon the Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder except, in each case, where any such contravention would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereunder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Selling Shareholder of its obligations under this Agreement of the Selling Shareholder, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares, except where the failure to obtain such consent, approval, authorization or order of, or qualification with, any governmental body or agency would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereunder. (c) The Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares to be sold by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such Shares. (d) [Reserved]. (e) Upon payment for the Shares to be sold by the 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 New York Uniform Commercial Code (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, the 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 certificate of incorporation, bylaws and applicable law, (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. (f) The Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement. (g) (i) The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any 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, (ii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (iii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, provided that such representations and warranties set forth in this subsection (g) apply only to statements or omissions made in reliance upon and in conformity with Shareholder Information (defined below) relating to the Selling Shareholder furnished in writing by or on behalf of the Selling Shareholder expressly for use in the Registration Statement, the Prospectus, the Time of Sale Prospectus and any amendments or supplements thereto. (i) None of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof, is a Person that is, or is owned or controlled by one or more Persons that are: (A) the subject of any Sanctions, or (B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea, Sudan and Syria). (ii) The Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person: (A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or (B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise). (iii) For the past five years, the Selling Shareholder has not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions. (a) None of the Selling Shareholder or its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (b) the Selling Shareholder and its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws. (v) The operations of the Selling Shareholder and its subsidiaries are and have been conducted at all times in material compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Selling Shareholder, threatened.
Appears in 2 contracts
Samples: Underwriting Agreement (Wingstop Inc.), Underwriting Agreement (Wingstop Inc.)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriters Underwriter that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The execution and delivery of this Agreement and the sale and delivery of the Shares to be sold by the Selling Shareholder of, and the performance consummation of the transactions contemplated herein and compliance by the Selling Shareholder of with its obligations hereunder (i) do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of or default under, this Agreement will not contravene any provision contract, indenture, mortgage, deed of applicable lawtrust, loan or the certificate of incorporation credit agreement, note, license, lease or by-laws of the Selling Shareholder (if other agreement or instrument to which the Selling Shareholder is a corporation), party or any agreement or other instrument binding upon by which the Selling Shareholder may be bound, or result in the creation or imposition of any tax, lien, charge or encumbrance upon the Shares to be sold by the Selling Shareholder, (ii) nor will such action result in any violation of (A) the provisions of the charter or by-laws or other organizational instrument of the Selling Shareholder, if applicable, or (B) any applicable treaty, law, statute, rule, regulation, judgment, order order, writ or decree of any governmental bodygovernment, agency government instrumentality or court court, domestic or foreign, having jurisdiction over the Selling Shareholder exceptor any of its properties; except in the case of clause (i) or clause (ii)(B), in each casefor such conflicts, where any such contravention breaches, violations or defaults as would not reasonably be expected to have a impair in any material adverse effect on respect the ability consummation of the Selling Shareholder to perform its Shareholder‘s obligations hereunder, hereunder and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Selling Shareholder of its obligations under this Agreement of the Selling Shareholder, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares, except where the failure to obtain such consent, approval, authorization or order of, or qualification with, any governmental body or agency would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereunderthereunder.
(c) The Selling Shareholder has, and on the Closing Date will have, valid good title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, to the Shares to be sold by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a valid security entitlement in respect of such Shares.
(d) [Reserved].
(e) Upon payment of the purchase price for the Shares to be sold by the Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the UnderwritersUnderwriter, to Cede & Co. (“Cede”) or such other nominee as may be designated by the The Depository Trust Company (“DTC”) (unless delivery of such Shares is unnecessary because such Shares are already in possession of Cede or such nominee), registration of such Shares in the name of Cede or such other nominee (unless registration of such Shares is unnecessary because such Shares are already registered in the name of Cede or such nominee), and the crediting of such Shares on the books of DTC to securities accounts (within the meaning of Section 8-501(a) of the Underwriters UCC) of the Underwriter, (assuming that neither DTC nor any such Underwriter has notice of does not have any “adverse claim (claim” within the meaning of Section 8-105 of the New York Uniform Commercial Code then in effect in the State of New York (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, (Bi) under Section 8-501 of the UCC, the Underwriters Underwriter will acquire a valid “security entitlement entitlement” in respect of such Shares and (Cii) no action (whether framed in conversion, replevin, constructive trust, equitable lien, or other theory) based on any “adverse claim”, ,” within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters Underwriter with respect to such security entitlement; for purposes of this representation, the Selling Shareholder may assume that when such payment, delivery (if necessary) and crediting occur, (xA) 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 certificate of incorporation, bylaws and applicable law, (yB) DTC will be registered as a “clearing corporation,” within the meaning of Section 8-102 of the UCC and UCC, (zC) appropriate entries to the accounts of the several Underwriters Underwriter on the records of DTC will have been made pursuant to the UCC, (D) to the extent DTC, or any other securities intermediary which acts as “clearing corporation” with respect to the Shares, maintains any “financial asset” (as defined in Section 8-102(a)(9) of the UCC) in a clearing corporation pursuant to Section 8-111 of the UCC, the rules of such clearing corporation may affect the rights of DTC or such securities intermediaries and the ownership interest of the Underwriter, (E) claims of creditors of DTC or any other securities intermediary or clearing corporation may be given priority to the extent set forth in Section 8-511(b) and 8-511(c) of the UCC and (F) if at any time DTC or other securities intermediary does not have sufficient Shares to satisfy claims of all of its entitlement holders with respect thereto then all holders will share pro rata in the Shares then held by DTC or such securities intermediary.
(e) The Selling Shareholder has not taken, and will not take, directly or indirectly, any action which is designed to or which has constituted or would be expected to cause or result in stabilization or manipulation of the price of any equity security, or any securities convertible into or exchangeable for, or that represent a right to receive an equity security or any equity-linked securities of the Company.
(f) The No filing with, or consent, approval, authorization, order, registration, qualification or decree of any arbitrator, court, governmental body, regulatory body, administrative agency or other authority, body or agency, domestic or foreign, is necessary or required for the performance by the Selling Shareholder of its obligations hereunder, or in connection with the sale and delivery of the Shares hereunder or the consummation of the transactions contemplated by this Agreement, except such as have been already obtained or as may be required under the Securities Act and the Securities Act Regulations, the rules of the New York Stock Exchange or state securities laws.
(g) Other than as set forth on Schedule II hereto, the Selling Shareholder has not prepared or had prepared on its behalf or used or referred to, any free writing prospectus, and has not distributed any written materials in connection with the offer or sale of the Shares.
(h) With the exception of Avalon Wealth Management, LLC, Duff & Xxxxxx, Xxxxxxx X’Xxxx + Partners, L.P., TCG Securities L.L.C. and TCW Funds Distributors and certain limited partners invested in funds affiliated with the Carlyle Group, neither the Selling Shareholder nor, to the Selling Shareholder’s knowledge, any of its affiliates directly, or indirectly through one or more intermediaries, controls, or is not prompted controlled by, or is under common control with any member firm of the Financial Industry Regulatory Authority (“FINRA”) or is a person associated with a member (within the meaning of the FINRA By-Laws) of FINRA.
(i) In respect of any statements in or omissions from the Time of Sale Prospectus or the Prospectus made in reliance upon and in conformity with information furnished to the Company by or on behalf of the Selling Shareholder specifically for inclusion therein, the Selling Shareholder hereby makes the same representations and warranties with respect to such information as the Company makes under paragraph 1(b) hereof, it being understood and agreed that such information consists only of its name and any information concerning relating to its holdings of the Company or its subsidiaries which is not Company’s common stock (including for the avoidance of doubt the information set forth in the table and footnotes thereto (except for percentages) in “Selling Stockholder”) as set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreementand the Prospectus (collectively, the “Selling Shareholder Information”).
(g) (ij) The Registration Statement, when it became effective, did not contain and, as amended Selling Shareholder will deliver to the Underwriter prior to or supplemented, if applicable, will not contain any 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, (ii) at the Time of Sale Prospectus does not, a properly completed and at the time of each sale executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof). Any certificate signed by any officer of the Shares in connection with Company or any of its subsidiaries delivered to the offering when Underwriter or to counsel for the Prospectus is not yet available to prospective purchasers Underwriter shall be deemed a representation and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented warranty by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (iii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, provided that such representations and warranties set forth in this subsection (g) apply only to statements or omissions made in reliance upon and in conformity with Shareholder Information (defined below) relating Company to the Selling Shareholder furnished in writing Underwriter as to the matters covered thereby; and any certificate signed by or on behalf of the Selling Shareholder expressly as such and delivered to the Underwriter or to counsel for use in the Registration Statement, the Prospectus, the Time of Sale Prospectus Underwriter pursuant to Section 6 hereof shall be deemed a representation and any amendments or supplements thereto.
(i) None of warranty by the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea, Sudan and Syria).
(ii) The Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether Underwriter as underwriter, advisor, investor or otherwise).
(iii) For the past five years, the Selling Shareholder has not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(a) None of the Selling Shareholder or its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (b) the Selling Shareholder and its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption lawsmatters covered thereby.
(v) The operations of the Selling Shareholder and its subsidiaries are and have been conducted at all times in material compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Selling Shareholder, threatened.
Appears in 2 contracts
Samples: Underwriting Agreement (Booz Allen Hamilton Holding Corp), Underwriting Agreement (Booz Allen Hamilton Holding Corp)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriters that:
(a) The Selling Shareholder has been duly incorporated, is validly existing as a limited liability company in good standing under the laws of the State of Delaware, has the limited liability company power and authority to enter into and assume the liabilities and obligations assumed or to be assumed by it pursuant to the Transaction Documents to which it is a party as described in the Time of Sale Prospectus.
(b) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(bc) The execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement, the Custody Agreement entered into by the Selling Shareholder and Computershare Trust Company, N.A. (the “Custody Agreement”) and the Power of Attorney appointing certain individuals as the Selling Shareholder’s attorneys-in-fact to the extent set forth therein, relating to the transactions contemplated hereby and by the Registration Statement ( the “Power of Attorney”) and the Transaction Documents to which it is a party will not contravene (i) any provision of applicable law, or (ii) the certificate of incorporation formation, limited liability company agreement or by-laws other organizational or governing documents of the Selling Shareholder Shareholder, (if the Selling Shareholder is a corporation), or iii) any agreement or other instrument binding upon the Selling Shareholder or (iv) any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder except, in each case, where any such contravention would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereunder, and no Shareholder. No consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Selling Shareholder of its obligations under this Agreement Agreement, the Custody Agreement, the Power of Attorney or the Selling ShareholderTransaction Documents, except such (A) as have been obtained and made under the Securities Act and (B) as may be required by the Exchange Act and the securities or Blue Sky blue sky laws of the various states in connection with the offer and sale of the Shares, except where the failure to obtain such consent, approval, authorization or order of, or qualification with, any governmental body or agency would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereunderother relevant jurisdiction.
(cd) The Selling Shareholder has, and on the each Closing Date will have, (i) 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 to be sold by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and (ii) the legal right and power, and all authorization and approval required by law, to enter into this Agreement Agreement, the Custody Agreement, the Power of Attorney and the Transaction Documents to which it is a party and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such Shares.
(de) [Reserved]The Custody Agreement and Power of Attorney have been duly authorized, executed and delivered by the Selling Shareholder and are valid and binding agreements of the Selling Shareholder.
(ef) Upon (i) the payment for the Shares to be sold by the Selling Shareholder pursuant to this Agreement, (ii) delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the The Depository Trust Company (“DTC”), (iii) registration of such Shares in the name of DTC, Cede or such other nominee nominee, and the crediting DTC or another person on behalf of DTC maintaining possession of certificates representing such Shares and (iv) DTC indicating by book entries on its books that security entitlements with respect to such Shares have been credited to the books of DTC to Underwriter’s securities accounts of account, the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim will acquire a security entitlement (within the meaning of Section 8-105 of the New York Uniform Commercial Code (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 ) with respect of to such Shares and (C) no action based on any an “adverse claim”, within the meaning of ” (as defined in 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, (assuming that the Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) Underwriters are purchasing such Shares will have been registered in the name without notice of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (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 UCCany adverse claim).
(fg) The Selling Shareholder is not prompted by any material information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any 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, (ii) as of the Applicable Time, the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is did not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading misleading, and (iii) as of its date and as of the Closing Date, and any Option Closing Date, the Prospectus does not contain and, as amended or supplemented, if applicable, and will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that such the representations and warranties set forth in this subsection (gparagraph 2(h) apply only are limited to statements or omissions made in reliance upon and in conformity with Shareholder Information (defined below) relating to the information regarding the Selling Shareholder furnished (including the related footnotes) set forth under “Principal and Selling Shareholders” in writing the Time of Sale Prospectus and the Prospectus (the “Selling Shareholder Information”).
(i) After giving effect to the Reorganization but before the issuance of Shares pursuant to this Agreement, Oasis Holdings will own 100% of the issued and outstanding capital stock of the Company; all of such shares of capital stock have been, or after giving effect to the Reorganization will be, duly authorized and validly issued, fully paid and non-assessable, and Oasis Holdings will own such shares of capital stock free and clear of all liens, encumbrances, charges or other claims.
(j) At or before the initial Closing Date, each of the Transaction Documents and Constituent Documents to which Oasis Holdings is a party will have been duly authorized, executed and delivered by Oasis Holdings and will be a valid and legally binding agreement of Oasis Holdings, enforceable against Oasis Holdings in accordance with its terms.
(k) Except as disclosed in the Time of Sale Prospectus, there are no contracts, agreements or on behalf of understandings between the Selling Shareholder expressly and any person that would reasonably give rise to a valid claim against the Selling Shareholder or any Underwriter for use any brokerage commission, finder’s fee or other like payment in connection with the Reorganization or the sale of the Shares by the Selling Shareholder.
(l) The Selling Shareholder will deliver to the Representatives, prior to the Closing Date, a properly completed and executed Internal Revenue Service Form W-9 or its equivalent (in the case of a U.S. person) or Form W-8BEN or its equivalent (in the case of a non-U.S. person), together with all required attachments to such form.
(m) There are no affiliations or associations between any member of FINRA and the Selling Shareholder; none of the proceeds received by the Selling Shareholder from the sale of the Shares to be sold by the Selling Stockholder pursuant to this Agreement will be paid to a member of FINRA or any affiliate of (or person “associated with,” as such terms are used in the Bylaws of FINRA) such member except as disclosed in the Registration Statement, the Prospectus, the Time of Sale Prospectus and any amendments or supplements theretothe Prospectus.
(i) None of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea, Sudan and Syria).
(iin) The Selling Shareholder will nothas not relied upon the Underwriters or their legal counsel for any legal, directly tax or indirectlyaccounting advice in connection with the Reorganization, use Transaction Documents or the proceeds transactions contemplated thereby, or the offering and sale of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at Shares by the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise)Selling Shareholder.
(iiio) For the past five years, the The Selling Shareholder has does not knowingly engaged in, is not now knowingly engaged in, and will not engage in, have any dealings registration or transactions with other similar rights to have any Person, equity or debt securities registered for sale by the Company under the Registration Statement or included in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctionsoffering contemplated by this Agreement.
(ap) None The Selling Shareholder 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 Selling Shareholder or its subsidiariesShares, orif any, that are to be sold by Company to the knowledge of Underwriters pursuant to this Agreement; and the Selling ShareholderStockholder does not own any warrants, options or similar rights to acquire, and does not have any right or arrangement to acquire, any directorcapital stock, officerright, employeewarrants, agent, representative, options or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of other securities from the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (b) the Selling Shareholder and its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption lawsCompany.
(v) The operations of the Selling Shareholder and its subsidiaries are and have been conducted at all times in material compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Selling Shareholder, threatened.
Appears in 2 contracts
Samples: Underwriting Agreement (Oasis Petroleum Inc.), Underwriting Agreement (Oasis Petroleum Inc.)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriters Underwriter that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement will not contravene (i) any provision of applicable law, or (ii) the certificate of incorporation or by-laws organizational documents of the Selling Shareholder Shareholder, (if the Selling Shareholder is a corporation), or iii) any agreement or other instrument binding upon the Selling Shareholder or (iv) any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder exceptShareholder, except in each casethe case of (i), where any such contravention (iii) and (iv) as would not not, singly or in the aggregate, reasonably be expected to have a material adverse effect on the Selling Shareholder’s ability of the Selling Shareholder to perform of its obligations hereunder, and no under this Agreement. No consent, approval, authorization or order of, or qualification with, any governmental body body, agency or agency court is required for the performance by the Selling Shareholder of its obligations under this Agreement of the Selling ShareholderAgreement, except (i) such as may have already been obtained, (ii) such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares, except where the failure to obtain Shares or (iii) such consent, approval, authorization or order of, or qualification with, any governmental body or agency that would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereunderconsummate the transactions contemplated by this Agreement.
(c) The Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares to be sold by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such Shares.
(d) [Reserved].
(e) Upon payment for the Shares to be sold by the Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the UnderwritersUnderwriter, 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 Underwriter (assuming that neither DTC nor any such the Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (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 Underwriter 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 successfully asserted against the Underwriters Underwriter with respect to such security entitlement; for purposes of this representation, the 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 certificate of incorporation, bylaws and applicable law, (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 account of the several Underwriters Underwriter on the records of DTC will have been made pursuant to the UCC.
(e) The Selling Shareholder has delivered to the Underwriter an executed lock-up agreement in substantially the form attached hereto as Exhibit A (the “Lock-up Agreement”).
(f) The Selling Shareholder has not taken, directly or indirectly, any action designed to or that could reasonably be expected to cause or result in any stabilization or manipulation of the price of the Shares in violation of Regulation M under the Exchange Act.
(g) The Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Registration Statement, the Time of Sale Prospectus or the Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) The the Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any 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, (ii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 55), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading misleading, and (iii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that such the representations and warranties set forth in this subsection (gparagraph 2(g) apply only are limited in all respects to statements or omissions made in reliance upon and in conformity with Shareholder Information (defined below) information relating to the Selling Shareholder furnished to the Company in writing by or on behalf of the Selling Shareholder expressly for use in the Registration Statement, the Time of Sale Prospectus, the Time of Sale Prospectus and or any amendments or supplements thereto, it being understood and agreed that for purposes of this Agreement, the only information furnished by the Selling Shareholder consists of the name of the Selling Shareholder, the number of offered shares and the address and other information with respect to the Selling Shareholder (excluding percentages) which appear in the Registration Statement or any Prospectus in the table (and corresponding footnotes) under the caption “The Selling Shareholder” (with respect to the Selling Shareholder, the “Selling Shareholder Information”).
(i) None of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, currently Crimea, Cuba, Iran, North Korea, Sudan Korea and Syria).
(ii) The Except as permitted for a Person required to comply with Sanctions, the Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For Except as permitted for a Person required to comply with Sanctions, for the past five years, the Selling Shareholder has not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(a) None of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (b) the Selling Shareholder and each of its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein herein; and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(v) The operations of the Selling Shareholder and each of its subsidiaries are and have been conducted at all times in material compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the best knowledge of the Selling Shareholder, threatened.
(j) The Selling Shareholder represents and warrants that it is not (i) an employee benefit plan subject to Title I of ERISA, (ii) a plan or account subject to Section 4975 of the Code or (iii) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R. 2510.3-101, or otherwise.
(k) The Selling Shareholder represents that no stamp, documentary, issuance, registration, transfer, withholding, capital gains, income or other taxes or duties are payable by or on behalf of the Underwriter, the Company or any of its subsidiaries in the Netherlands or to any taxing authority thereof or therein in connection with (i) the execution, delivery or consummation of this Agreement by the Selling Shareholder, (ii) the sale and delivery of the Shares by the Selling Shareholder to the Underwriter or purchasers procured by the Underwriter, or (iii) the resale and delivery of such Shares by the Underwriter in the manner contemplated herein.
(l) The Selling Shareholder has the power to submit, and pursuant to Section 20(a) has, to the extent permitted by law, legally, validly, effectively and irrevocably submitted, to the jurisdiction of the Specified Courts (as defined in Section 20(a)), and has the power to designate, appoint and empower, and pursuant to Section 20(b), has legally, validly and effectively designated, appointed and empowered an agent for service of process in any suit or proceeding based on or arising under this Agreement in any of the Specified Courts.
Appears in 2 contracts
Samples: Underwriting Agreement (Maple Holdings B.V.), Underwriting Agreement (Keurig Dr Pepper Inc.)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to the Underwriter with respect to itself that, and agrees with each of acknowledges that the Underwriters Underwriter is relying upon such representations and warranties in purchasing the Securities, that:
7.1 it has been formed and is existing under the laws of the jurisdiction of its formation and has all (acorporate) This power and authority (acting through its general partner) to own, lease and operate its properties and assets, including to own the Securities to be sold by it to the Underwriter;
7.2 it has the requisite power, authority and capacity (acting through its general partner) to enter into this Agreement, and to perform its obligations hereunder, including to sell the Securities to be sold by it to the Underwriter;
7.3 this Agreement has been duly authorized, executed and delivered by the Selling Shareholder (acting through its general partner) and constitutes a legal, valid and binding obligation of the Selling Shareholder, enforceable against it in accordance with its terms, except as enforcement hereof may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally and except as limited by the application of equitable principles when equitable remedies are sought and subject to the fact that rights of indemnity and contribution may be limited by applicable law;
7.4 as of the date hereof, and as of the Closing Time, and prior to delivery to the Underwriter, the Selling Shareholder will be the beneficial owner of the Securities to be sold and delivered by it (or the beneficial owner of multiple voting shares of the Company convertible into the number of Securities to be sold and delivered by it);
7.5 as of the date hereof, other than as disclosed in the Offering Documents or as has been waived in full in respect of the Offering, no person, firm or corporation has any agreement or option, or right or privilege (whether pre-emptive or contractual) capable of becoming an agreement or option, for the purchase of any of the Securities owned by the Selling Shareholder;
7.6 all actions required to be taken by or on behalf of the Selling Shareholder.
(b) The execution Shareholder or its general partner, including the passing of all requisite resolutions, so as to duly sell and delivery deliver the Securities held by the Selling Shareholder (or, as applicable, to be held by the Selling Shareholder further to the conversion of the multiple voting shares of the Company currently held by it) have been taken;
7.7 except, with respect to Selling Shareholder Contracts (as defined below) and Selling Shareholder Laws (as defined below), for such breaches, violations, conflicts or defaults that do not or would not, individually or in aggregate, preclude the Selling Shareholder from complying with its obligations hereunder, the Selling Shareholder is not in violation or default of, nor will the execution and delivery of this Agreement, and the performance by the Selling Shareholder of its obligations under this Agreement, including the sale of the Securities to be sold by the Selling Shareholder, result in any breach or violation of, or be in conflict with, or constitute a default under, this Agreement will not contravene or create a state of facts which after notice or lapse of time, or both, would constitute a default under, or give rise to any right to accelerate the maturity or require the prepayment of any indebtedness under, or result in the imposition of any lien, charge or encumbrance upon any property or assets of the Selling Shareholder pursuant to (i) any term or provision of applicable law, or the certificate of incorporation constating documents or by-laws or any resolution of the Selling Shareholder directors or shareholders, (if ii) any material contract, note, indenture, joint venture or partnership arrangement or license to which the Selling Shareholder is a corporationparty or bound or to which any of the business, operations, property or assets of the Selling Shareholder are subject (collectively, the “Selling Shareholder Contracts”), or (iii) any agreement statute, law, rule, regulation, judgment, order or decree applicable to the Selling Shareholder or the business, operations or assets of the Selling Shareholder, of any court, regulatory body, administrative agency, governmental body, arbitrator or other instrument binding authority having jurisdiction over the Selling Shareholder (collectively, the “Selling Shareholder Laws”);
(A) on the Closing Date, the Selling Shareholder will have beneficial ownership of the Securities to be sold by it, free and clear of any Lien (other than restrictions on transfer that have been waived in full in respect of the Offering), except as provided in this Agreement; (B) the Selling Shareholder has, and will have, on the Closing Date, the full right, power and authority (acting through its general partner) to sell, assign, transfer and deliver the Securities to be sold by it to the Underwriter hereunder; and (C) upon delivery of the Securities to be sold by it and payment of the Purchase Price, the Underwriter will obtain beneficial ownership of the Securities to be acquired by it from the Selling Shareholder, free and clear of any Lien;
7.9 neither the Selling Shareholder nor any affiliate of the Selling Shareholder has taken, nor will the Selling Shareholder or any judgmentaffiliate of the Selling Shareholder take, order any action which is designed to or decree which constitutes or might reasonably be expected to cause or result in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities;
7.10 no approval, authorization, consent or other order of, permit, qualification, license, decree, and no filings, registration or recording with, any government, governmental bodyinstrumentality, authority, agency or court having jurisdiction over the Selling Shareholder except, in each case, where any such contravention would not reasonably be expected to have a material adverse effect on the ability of is required by the Selling Shareholder to perform its obligations hereunder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Selling Shareholder of its obligations under this Agreement of the Selling Shareholder, except such as may be required by the securities or Blue Sky laws of the various states hereunder in connection with the offer and sale of the SharesSecurities hereunder or the consummation of the transactions contemplated by this Agreement, except where as have been or will be obtained or made prior to the failure to obtain such consentClosing;
7.11 other than as contemplated hereby, approval, authorization or order of, or qualification with, any governmental body or agency would not reasonably be expected to have a material adverse effect on there is no person acting at the ability request of the Selling Shareholder who is entitled to perform its obligations hereunder.
(c) The Selling Shareholder has, and on any brokerage or agency fee in connection with the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 sale of the New York Uniform Commercial Code in respect of, the Shares to be sold by Securities;
7.12 the Selling Shareholder free represents and clear warrants that it has complied with or obtained a waiver of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval requirements required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold obtained by it, in connection with the Offering under the Registration Rights Agreement;
7.13 the Selling Shareholder or a security entitlement in respect represents and warrants that either: (i) it is not (1) an employee benefit plan subject to Title I of such Shares.
(d) [Reserved].
(e) Upon payment for the Shares to be sold by the Selling Shareholder pursuant to this Agreement, delivery Employee Retirement Income Security Act of such Shares1974, as directed by the Underwriters, to Cede & Co. amended (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTCERISA”), registration of such Shares in the name of Cede (2) a plan or such other nominee and the crediting of such Shares on the books of DTC account subject to securities accounts Section 4975 of the Underwriters Code, or (assuming that neither DTC nor 3) an entity deemed to hold “plan assets” of any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (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) plan or account under Section 83(42) of ERISA, 29 C.F.R. 2510.3-501 of the UCC101, 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 entitlementor otherwise; for purposes of this representation, the 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 certificate of incorporation, bylaws and applicable law, (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.
(f) The Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any 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, (ii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light subordinate voting shares of the circumstances under which they were made, not misleading and (iii) Company to the Prospectus does not contain and, as amended or supplemented, if applicable, Underwriter will not contain any untrue statement constitute a non-exempt prohibited transaction under Section 406 of a material fact ERISA or omit to state a material fact necessary to make the statements therein, in the light Section 4975 of the circumstances Code or a similar violation under which they were made, provided any other laws or regulations that are similar to such representations and warranties set forth in this subsection (g) apply only to statements provisions of ERISA or omissions made in reliance upon and in conformity with Shareholder Information (defined below) relating to the Selling Shareholder furnished in writing by or on behalf of Code;
7.14 the Selling Shareholder expressly for use in the Registration Statement, the Prospectus, the Time of Sale Prospectus and any amendments or supplements thereto.
(i) None of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea, Sudan and Syria).
(ii) The Selling Shareholder will not, directly or indirectly, use the proceeds of the offeringOffering, or lend, lend contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
Person (Aa) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
, or (Bb) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offeringOffering, whether as underwriter, advisor, investor or otherwise).;
(iii) For 7.15 each delivery of the past five yearsPreliminary Offering Documents, the Final Offering Documents and any Offering Document Amendment in respect of the Preliminary Offering Document or the Final Offering Documents to the Underwriter by the Company in accordance with this Agreement will constitute representation and warranty of the Selling Shareholder to the Underwriter that at the respective times of delivery, the Selling Shareholder has not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(a) None of Matters as applicable to the Selling Shareholder or its subsidiaries, or, to the knowledge are true and correct in all material respects and contain no misrepresentation; and
7.16 as of the Selling Shareholderdate hereof, any director, officer, employee, agent, representative, or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval as of the payment giving or receipt Closing Date, the sale of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (b) the Securities by the Selling Shareholder is not prompted by any material non-public information concerning the Company or the Subsidiaries that is required to be disclosed in the Offering Documents and its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption lawsis not so disclosed.
(v) The operations of the Selling Shareholder and its subsidiaries are and have been conducted at all times in material compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Selling Shareholder, threatened.
Appears in 2 contracts
Samples: Underwriting Agreement (BRP Inc.), Underwriting Agreement (BRP Inc.)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriters that:
(ai) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(bii) The execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations underunder this Agreement, this Agreement will not contravene (i) any provision of applicable lawlaw applicable to the Selling Shareholder, or (ii) the certificate of incorporation or by-laws organizational documents of the Selling Shareholder (if the Selling Shareholder is a corporation, limited liability company, partnership or other entity), or (iii) any agreement or other instrument binding upon the Selling Shareholder or (iv) any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder exceptShareholder, except in each casethe case of clauses (i), where any such contravention (iii) and (iv) as would not reasonably be expected to not, singly or in the aggregate, have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereunder, consummate the transactions contemplated by this Agreement and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Selling Shareholder of its obligations under this Agreement of the Selling Shareholder, except (i) such as may have already been obtained, (ii) such as may be required by the securities or Blue Sky laws of the various states or foreign jurisdictions or the rules and regulations of FINRA in connection with the offer and sale of the Shares, except where the failure to obtain Securities or (iii) such consent, approval, authorization or order of, or qualification with, any governmental body or agency that would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereunderconsummate the transactions contemplated by this Agreement.
(ciii) The Selling Shareholder has, and on at the Closing Date Time will have, valid title to, or a valid “security entitlement” within the meaning of (as defined in Section 8-501 102 of the New York Uniform Commercial Code Code) in respect of, the Shares Securities to be sold by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares Securities to be sold by the Selling Shareholder or a security entitlement in respect of such SharesSecurities.
(d) [Reserved].
(eiv) Upon payment for the Shares Securities to be sold by the Selling Shareholder pursuant to this Agreement, delivery of such SharesSecurities, 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 Securities in the name of Cede or such other nominee and the crediting of such Shares Securities on the books of DTC to the securities accounts of the several Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”)) to such SharesSecurities), (A) DTC shall be a “protected purchaser” of such Shares Securities 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 Securities and (C) no action based on any “adverse claim”, within the meaning of (as defined in Section 8-102 of the UCC, ) to such Shares Securities may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, the Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares Securities 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 certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of (as defined in Section 8-102 of the UCC 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.
(fv) The Selling Shareholder is not prompted by any information concerning has delivered to the Company or its subsidiaries which is not set forth Representatives an executed “lock-up” agreement in substantially the Time of Sale Prospectus to sell its Shares pursuant to this form attached hereto as Exhibit A (the “Lock-up Agreement”).
(g) (i) The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any 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, (ii) the Time of Sale Prospectus General Disclosure Package does not, and at the time of each sale of the Shares Securities in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date Time (as defined in Section 52), the Time of Sale ProspectusGeneral Disclosure Package, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (iii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, provided not misleading, except that such the representations and warranties set forth in this subsection (gparagraph 1(b)(vi) apply only are limited in all respects to statements or omissions made in reliance upon and in conformity with Shareholder Information (defined below) the information relating to the Selling Shareholder furnished to the Company in writing by or on behalf of the Selling Shareholder expressly for use in the Registration Statement, the General Disclosure Package or the Prospectus, it being understood and agreed that for purposes of this Agreement, the Time of Sale Prospectus and any amendments or supplements thereto.
(i) None of only information furnished by the Selling Shareholder or any consists of its subsidiaries, or, to the knowledge name of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject number of any Sanctions, or
(B) located, organized or resident in a country or territory that is offered shares and the subject of Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea, Sudan address and Syria).
(ii) The Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past five years, the Selling Shareholder has not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(a) None of the Selling Shareholder or its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (b) the Selling Shareholder and its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(v) The operations of the Selling Shareholder and its subsidiaries are and have been conducted at all times in material compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries information with respect to the Anti-Money Laundering Laws is pending or, to Selling Shareholder (excluding percentages) which appear in the knowledge of Registration Statement or the Prospectus in the table (and corresponding footnotes) under the caption “Principal and Selling Shareholder, threatenedStockholders” (the “Selling Shareholder Information”).
Appears in 2 contracts
Samples: Underwriting Agreement (Convey Holding Parent, Inc.), Underwriting Agreement (Convey Holding Parent, Inc.)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriters Underwriter that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement will not contravene (i) any provision of applicable law, or (ii) the certificate of incorporation or by-laws organizational documents of the Selling Shareholder Shareholder, (if the Selling Shareholder is a corporation), or iii) any agreement or other instrument binding upon the Selling Shareholder or (iv) any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder exceptShareholder, except in each casethe case of (i), where any such contravention (iii) and (iv) as would not not, singly or in the aggregate, reasonably be expected to have a material adverse effect on the Selling Shareholder’s ability of the Selling Shareholder to perform of its obligations hereunder, and no under this Agreement. No consent, approval, authorization or order of, or qualification with, any governmental body body, agency or agency court is required for the performance by the Selling Shareholder of its obligations under this Agreement of the Selling ShareholderAgreement, except (i) such as may have already been obtained, (ii) such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares, except where the failure to obtain Shares or (iii) such consent, approval, authorization or order of, or qualification with, any governmental body or agency that would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereunderconsummate the transactions contemplated by this Agreement.
(c) The Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares to be sold by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such Shares.
(d) [Reserved].
(e) Upon payment for the Shares to be sold by the Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the UnderwritersUnderwriter, 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 Underwriter (assuming that neither DTC nor any such the Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (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 Underwriter 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 successfully asserted against the Underwriters Underwriter with respect to such security entitlement; for purposes of this representation, the 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 certificate of incorporation, bylaws and applicable law, (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 account of the several Underwriters Underwriter on the records of DTC will have been made pursuant to the UCC.
(e) The Selling Shareholder has delivered to the Underwriter an executed lock-up agreement in substantially the form attached hereto as Exhibit A (the “Lock-up Agreement”).
(f) The Selling Shareholder has not taken, directly or indirectly, any action designed to or that could reasonably be expected to cause or result in any stabilization or manipulation of the price of the Shares in violation of Regulation M under the Exchange Act.
(g) The Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Registration Statement, the Time of Sale Prospectus or the Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) The the Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any 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, (ii) the ii)the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 55), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading misleading, and (iii) the iii)the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that such the representations and warranties set forth in this subsection (gparagraph 2(g) apply only are limited in all respects to statements or omissions made in reliance upon and in conformity with Shareholder Information (defined below) information relating to the Selling Shareholder furnished to the Company in writing by or on behalf of the Selling Shareholder expressly for use in the Registration Statement, the Time of Sale Prospectus, the Time of Sale Prospectus and or any amendments or supplements thereto, it being understood and agreed that for purposes of this Agreement, the only information furnished by the Selling Shareholder consists of the name of the Selling Shareholder, the number of offered shares and the address and other information with respect to the Selling Shareholder (excluding percentages) which appear in the Registration Statement or any Prospectus in the table (and corresponding footnotes) under the caption “The Selling Shareholder” (with respect to the Selling Shareholder, the “Selling Shareholder Information”).
(i) None of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, currently Crimea, Cuba, Iran, North Korea, Sudan Korea and Syria).
(ii) The Except as permitted for a Person required to comply with Sanctions, the Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For Except as permitted for a Person required to comply with Sanctions, for the past five years, the Selling Shareholder has not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(a) None of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (b) the Selling Shareholder and each of its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein herein; and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(v) The operations of the Selling Shareholder and each of its subsidiaries are and have been conducted at all times in material compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the best knowledge of the Selling Shareholder, threatened.
(j) The Selling Shareholder represents and warrants that it is not (i) an employee benefit plan subject to Title I of ERISA, (ii) a plan or account subject to Section 4975 of the Code or (iii) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R. 2510.3-101, or otherwise.
(k) The Selling Shareholder represents that no stamp, documentary, issuance, registration, transfer, withholding, capital gains, income or other taxes or duties are payable by or on behalf of the Underwriter, the Company or any of its subsidiaries in the Netherlands or to any taxing authority thereof or therein in connection with (i) the execution, delivery or consummation of this Agreement by the Selling Shareholder, (ii) the sale and delivery of the Shares by the Selling Shareholder to the Underwriter or purchasers procured by the Underwriter, or (iii) the resale and delivery of such Shares by the Underwriter in the manner contemplated herein.
(l) The Selling Shareholder has the power to submit, and pursuant to Section 20(a) has, to the extent permitted by law, legally, validly, effectively and irrevocably submitted, to the jurisdiction of the Specified Courts (as defined in Section 20(a)), and has the power to designate, appoint and empower, and pursuant to Section 20(b), has legally, validly and effectively designated, appointed and empowered an agent for service of process in any suit or proceeding based on or arising under this Agreement in any of the Specified Courts.
Appears in 2 contracts
Samples: Underwriting Agreement (Maple Holdings B.V.), Underwriting Agreement (Keurig Dr Pepper Inc.)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, under this Agreement will not contravene any provision of applicable law, or the certificate articles of incorporation or by-laws association of the Selling Shareholder (if the Selling Shareholder is a corporation)Shareholder, or any agreement or other instrument binding upon the Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder except, in each case, where any such contravention would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereunderShareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body body, agency or agency court is required for the performance by the Selling Shareholder of its obligations under this Agreement of the Selling ShareholderAgreement, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares, except where the failure to obtain such consent, approval, authorization or order of, or qualification with, any governmental body or agency would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereunder.
(c) The Selling Shareholder has, and on the Closing Date or the Option Closing Date, as applicable, will have, 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 to be sold by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such Shares.
(d) [Reserved].
(e) Upon payment for the Shares to be sold by the Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the UnderwritersUnderwriters in accordance with this Agreement, 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 New York Uniform Commercial Code (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, the Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares being sold by the Selling Shareholder will have been registered in the name of Cede or another nominee as may be designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” and thus a “securities intermediary” 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.
(e) The Selling Shareholder has delivered to Mxxxxx Sxxxxxx & Co. LLC an executed lock-up agreement in substantially the form attached hereto as Exhibit A (the “Lock-up Agreement”).
(f) The Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Registration Statement, the Time of Sale Prospectus or the Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any 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, (ii) the Registration Statement and the Prospectus comply and, as amended or supplemented, if applicable, will comply in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder, (iii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), or the Option Closing Date, as applicable, the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (iv) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (iiiv) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that such the representations and warranties set forth in this subsection (g) apply only paragraph are limited in all respects to statements or omissions made in reliance upon and in conformity with Shareholder Information (defined below) information relating to the Selling Shareholder furnished to the Company in writing by or on behalf of the Selling Shareholder expressly for use in the Registration Statement, the Time of Sale Prospectus, the Time of Sale Prospectus and or any amendments or supplements thereto, it being understood and agreed that the only information furnished by the Selling Shareholder is the name of the Selling Shareholder, the number of offered shares and the address and other information with respect to the Selling Shareholder (excluding percentages) that appear in the footnotes under the caption “Selling Stockholder) (the “Selling Shareholder Information”).
(i) None of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea, Sudan Korea and Syria).
(ii) The Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past five 5 years, the Selling Shareholder has not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(a) None of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (b) the Selling Shareholder and each of its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein herein; and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(vj) The operations of the Selling Shareholder and each of its subsidiaries are and have been conducted at all times in material compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the best knowledge of the Selling Shareholder, threatened.
(k) The Selling Shareholder represents and warrants that it is not (i) an employee benefit plan subject to Title I of ERISA, (ii) a plan or account subject to Section 4975 of the Internal Revenue Code of 1986, as amended or (iii) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R. 2510.3-101, or otherwise.
(l) No stamp, documentary, issuance, registration, transfer, withholding, capital gains, income or other taxes or duties are payable by or on behalf of the Underwriters, the Company or any of its subsidiaries in Luxembourg or to any taxing authority thereof or therein in connection with (i) the execution, delivery or consummation of this Agreement, (ii) the sale and delivery of the Shares to the Underwriters or purchasers procured by the Underwriters, or (iii) the resale and delivery of the Shares by the Underwriters in the manner contemplated herein.
(m) The Selling Shareholder has the power to submit, and pursuant to Section 17(a) has, to the extent permitted by law, legally, validly, effectively and irrevocably submitted, to the jurisdiction of the Specified Courts (as defined in Section 17(a)), and has the power to designate, appoint and empower, and pursuant to Section 17(b), has legally, validly and effectively designated, appointed and empowered an agent for service of process in any suit or proceeding based on or arising under this Agreement in any of the Specified Courts.
Appears in 2 contracts
Samples: Underwriting Agreement (WillScot Mobile Mini Holdings Corp.), Underwriting Agreement (WillScot Mobile Mini Holdings Corp.)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder hereby represents and warrants to and agrees with each of the Underwriters thatUnderwriter as follows:
(a) The Selling Shareholder has caused the Shares to be sold by the Selling Shareholder hereunder to be transferred to an account with La Salle Bank National Association (the "Transfer Agent"), on or prior to the date hereof, free and clear of any lien, claim, security interest or other encumbrance to be held by the Transfer Agent on behalf of the Selling Shareholder until the Closing.
(b) This Agreement has and the Lock-Up Agreement have each been duly authorized, executed and delivered by or on behalf of the Selling Shareholder and, assuming due authorization, execution and delivery by the other parties hereto, constitutes the valid and legally binding agreement of the Selling Shareholder, enforceable against the Selling Shareholder in accordance with its terms.
(bc) The execution and delivery by the Selling Shareholder of, of this Agreement and the performance by the Selling Shareholder of its obligations under, under this Agreement (i) will not contravene any provision of applicable law, statute, regulation or the certificate of incorporation or by-laws of the Selling Shareholder (if the Selling Shareholder is a corporation), filing or any agreement or other instrument binding upon the Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder exceptShareholder, in each case, where (ii) does not require any such contravention would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereunder, and no consent, approval, authorization or order of, of or qualification with, registration or filing with any court or governmental agency or body or agency is required for the performance by the Selling Shareholder of its obligations under this Agreement of the Selling Shareholderhaving jurisdiction over it, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the SharesShares which have been or will be effected in accordance with this Agreement, except where (iii) does not and will not violate any statute, law, regulation or filing or judgment, injunction, order or decree applicable to the failure to obtain such consentSelling Shareholder or (iv) will not result in the creation or imposition of any lien, approval, authorization charge or order of, encumbrance upon any property or qualification with, any governmental body or agency would not reasonably be expected to have a material adverse effect on the ability assets of the Selling Shareholder pursuant to perform its obligations hereunderthe terms of any agreement or instrument to which the Selling Shareholder is a party or by which the Selling Shareholder may be bound or to which any of the property or assets of the Selling Shareholder is subject.
(cd) The Selling Shareholder has, and on the Firm Shares Closing Date will have, valid and marketable title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, to the Shares to be sold by the Selling Shareholder free and clear of all any lien, claim, security interests, claims, liens, equities interest or other encumbrances encumbrance, including, without limitation, any restriction on transfer, except as otherwise described in the Registration Statement and the legal right and powerProspectus.
(e) The Selling Shareholder has, and all authorization on the Firm Shares Closing Date will have, full legal right, power and authorization, and any approval required by law, to enter into this Agreement and to sell, assign, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such Sharesthe manner provided by this Agreement.
(d) [Reserved].
(ef) Upon delivery of and payment for the Shares to be sold by the 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 New York Uniform Commercial Code (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 several Underwriters will acquire a receive 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, marketable title to such Shares may be asserted against the Underwriters with respect to such free and clear of any lien, claim, security entitlement; for purposes of this representation, the Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede interest or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (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.
(f) The Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreementother encumbrance.
(g) (i) The All information relating to the Selling Shareholder furnished in writing by the Selling Shareholder expressly for use in the Registration StatementStatement and Prospectus is, when it became effectiveand on each Closing Date will be, did not contain andtrue, as amended or supplementedcorrect, if applicableand complete, will not contain any 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, (ii) the Time of Sale Prospectus and does not, and at the time of on each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state any material fact necessary to make such information not misleading.
(h) The Selling Shareholder has reviewed the Registration Statement and Prospectus and, although the Selling Shareholder has not independently verified the accuracy or completeness of all the information contained therein, nothing has come to the attention of the Selling Shareholder that would lead the Selling Shareholder to believe that (i) on the Effective Date, the Registration Statement contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein in order to make the statements made therein not misleading and (ii) on the Effective Date the Prospectus contained and, on each Closing Date contains, any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading and (iii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, provided that such representations and warranties set forth in this subsection (g) apply only to statements or omissions made in reliance upon and in conformity with Shareholder Information (defined below) relating to the Selling Shareholder furnished in writing by or on behalf of the Selling Shareholder expressly for use in the Registration Statement, the Prospectus, the Time of Sale Prospectus and any amendments or supplements theretomisleading.
(i) None The sale of Shares by the Selling Shareholder or any of its subsidiaries, or, pursuant to the knowledge of this Agreement is not prompted by the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject 's knowledge of any Sanctions, or
(B) located, organized material information concerning the Company or resident its Subsidiaries which is not set forth in a country or territory that is the subject of Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea, Sudan and Syria)Prospectus.
(iij) The Selling Shareholder has not taken and will notnot take, directly or indirectly, use the proceeds any action designed to or that might reasonably be expected to cause or result in stabilization or manipulation of the offering, price of any security of the Company to facilitate the sale or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business resale of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise)Shares.
(iiik) For the past five years, the The Selling Shareholder has not knowingly engaged in, no actual knowledge that any representation or warranty of the Company set forth in Section 4 above is not now knowingly engaged in, and will not engage in, any dealings untrue or transactions with any Person, or inaccurate in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctionsmaterial respect.
(a) None of the Selling Shareholder or its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (b) the Selling Shareholder and its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(v) The operations of the Selling Shareholder and its subsidiaries are and have been conducted at all times in material compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Selling Shareholder, threatened.
Appears in 2 contracts
Samples: Underwriting Agreement (American Medical Security Group Inc), Underwriting Agreement (American Medical Security Group Inc)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement will not contravene any provision of applicable law, or the certificate memorandum and articles of incorporation or by-laws association of the Selling Shareholder (if the Selling Shareholder is a corporation)Shareholder, or any agreement or other instrument binding upon the Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder except, in each case, where any such contravention would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereunderShareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Selling Shareholder of its obligations under this Agreement of the Selling ShareholderAgreement, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares, except where the failure to obtain such consent, approval, authorization or order of, or qualification with, any governmental body or agency would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereunder.
(c) The Selling Shareholder has, and on the Closing Date will have, 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 to be sold by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such Shares.
(d) [Reserved].
(e) Upon payment for the Shares to be sold by the 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 New York Uniform Commercial Code (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, the 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 register in accordance with its certificate memorandum and articles of incorporation, bylaws association and applicable law, (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.
(f) The Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any 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, (ii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (iiiii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, provided that such the representations and warranties set forth in this subsection (gparagraph 2(e) apply only are limited to statements or omissions in the Registration Statement or Prospectus made in reliance upon and in conformity with Shareholder Information (defined below) information relating to the Selling Shareholder furnished to the Company in writing by or on behalf of the Selling Shareholder expressly for use in the Registration Statement, the Prospectus, the Time of Sale Prospectus and or any amendments or supplements thereto.
(i) None of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea, Sudan and Syria).
(ii) The Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past five years, the Selling Shareholder has not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(a) None of the Selling Shareholder or its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (b) the Selling Shareholder and its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(v) The operations of the Selling Shareholder and its subsidiaries are and have been conducted at all times in material compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Selling Shareholder, threatened.
Appears in 2 contracts
Samples: Underwriting Agreement (Seagate Technology), Underwriting Agreement (Seagate Technology Holdings)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriters as of the date hereof and as of the Closing Date that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The sale and delivery of the Firm Shares by the Selling Shareholder, the deposit of the Underlying Shares by the Selling Shareholder with the Depositary against issuance of the ADRs evidencing the ADSs to be delivered by the Selling Shareholder, the European Share Deposit and the execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement will not contravene any provision of applicable law, or the certificate of incorporation or by-laws articles of association (vedtekter) of the Selling Shareholder (if the Selling Shareholder is a corporation)Shareholder, or any agreement or other instrument binding upon the Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder except, in each case, where any such contravention would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereunderShareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Selling Shareholder of its obligations under this Agreement of the Selling ShareholderAgreement, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares, except where the failure to obtain such consent, approval, authorization or order of, or qualification with, any governmental body or agency would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereunderSecurities.
(c) The Selling Shareholder has, beneficially owns and on the Closing Date will have, beneficially own or has and will have on the Closing Date a valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Securities and the Underlying Shares to be represented by the ADSs to be sold by the Selling Shareholder hereunder, free and clear of all security interests, claims, liens, equities or other encumbrances encumbrances; and the Selling Shareholder has the legal right and power, and all authorization and approval required by law, to enter into the Deposit Agreement and to deposit the Underlying Shares with the Depositary against the issuance of the ADRs evidencing the ADSs to be delivered by the Selling Shareholder; the Selling Shareholder has valid title to the Common Shares deposited in (as a result of the European Share Deposit), and to be transferred through, Euroclear NL, in the manner contemplated by this Agreement and the Prospectus.
(d) The Selling Shareholder has the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares Securities to be sold by the Selling Shareholder or a security entitlement in respect of such Shares.
(d) [Reserved]Securities.
(e) Upon payment for The ADSs representing the Underlying Shares to be sold by were deposited in accordance with the Selling Shareholder pursuant to this Agreementprovisions of the Deposit Agreement and were duly issued, and, upon the sale and delivery of such Shares, as directed the ADRs to the person(s) procured by the Underwriters, the person(s) in whose name(s) the ADRs are registered will be entitled to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares rights in the name of Cede or such other nominee and ADSs representing the crediting of such Underlying 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 New York Uniform Commercial Code (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, the Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered specified in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (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 UCCDeposit Agreement.
(f) No stamp, documentary, issuance, registration, transfer, withholding, capital gains, income or other taxes or duties are payable by or on behalf of the Underwriters, the Company or any of its subsidiaries in Norway or to any taxing authority thereof or therein in connection with (i) the execution, delivery or consummation of this Agreement, (ii) the sale and delivery of the Securities to the Underwriters or purchasers procured by the Underwriters, or (iii) the resale and delivery of the Securities by the Underwriters in the manner contemplated herein.
(g) The statements set forth under the heading “Material U.S. Federal Income Tax Considerations” in the Registration Statement or any amendment thereto, to the extent that they relate to matters of U.S. federal income tax law and legal conclusions with respect thereto, other than the statements under the heading “Passive Investment Company Rules” relating to the Company’s status under the U.S. federal income tax rules defining the term “passive foreign investment company”, to the extent that they relate to matters of U.S. federal income tax law and legal conclusions with respect thereto, are accurate and complete in all material respects.
(h) The Selling Shareholder is not prompted (i) an employee benefit plan subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), (ii) a plan or account subject to Section 4975 of the Internal Revenue Code of 1986, as amended, or (iii) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R. 2510.3-101, or otherwise.
(i) The Selling Shareholder Information in the Registration Statement or any amendment thereof constitutes a fair summary of the matters described therein.
(j) The Selling Shareholder has the power to submit, and pursuant to Section 19(a) has, to the extent permitted by law, legally, validly, effectively and irrevocably submitted, to the jurisdiction of the Specified Courts, and has the power to designate, appoint and empower, and pursuant to Section 19(c), has legally, validly and effectively designated, appointed and empowered an agent for service of process in any information concerning suit or proceeding based on or arising under this Agreement in any of the Specified Courts.
(k) The Selling Shareholder has no reason to believe that the representations and warranties of the Company contained in Section 1 are not true and correct, is familiar with the Registration Statement, the Time of Sale Prospectus and the Prospectus and has no knowledge of any material fact, condition or its subsidiaries which is information not set forth disclosed in the Time of Sale Prospectus to sell its Shares pursuant to this Agreementthat has had, or may have, a Material Adverse Effect.
(gl) (i) The Each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) each of the Registration Statement and the ADR Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any 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, (iiiii) the Registration Statement, the ADR Registration Statement and the Prospectus comply and, as amended or supplemented, if applicable, will comply in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder, (iv) the Time of Sale Prospectus does not, and at the time of each sale of the Shares Securities in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (v) each live road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (iiivi) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, provided not misleading, except that such the representations and warranties set forth in this subsection (gparagraph 2(l) do not apply only to statements or omissions made in reliance the Registration Statement or the Prospectus based upon and in conformity with Shareholder Information (defined below) information relating to any Underwriter furnished to the Selling Shareholder furnished Company in writing by or on behalf of the Selling Shareholder such Underwriter through you expressly for use in the Registration Statement, the Prospectus, the Time of Sale Prospectus and any amendments or supplements theretotherein.
(i) None of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof, or other person associated with or acting on behalf of the Selling Shareholder or any of its subsidiaries, is a Person that is, or is owned or controlled by one a Sanctioned Person, or more Persons that are:
(A) the subject of any Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea, Sudan and Syria)Sanctioned Country.
(ii) The Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Sanctioned Person or in any country or territory that, at the time of such funding or facilitation, is the subject of SanctionsSanctioned Countries; or
(B) in any other manner that will result in a violation of Sanctions sanctions laws by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past five years, the Selling Shareholder has and its subsidiaries have not knowingly engaged in, is are not now knowingly engaged in, and will not engage in, any dealings or transactions with any Sanctioned Person, or in any country or territorySanctioned Country, that at other than such limited telecommunications-related transactions with Sanctioned Countries as are permitted under the time terms of the dealing or transaction is or was relevant Sanctions (including, without limitation, those transactions disclosed in the subject of SanctionsCompany’s Annual Report on Form 20-F for the fiscal year ended December 31, 2016).
(a) None of the Selling Shareholder or its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, affiliate thereof, or affiliate thereof other person associated with or acting on behalf of the Selling Shareholder has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable antiAnti-corruption lawsCorruption Laws; (b) the Selling Shareholder and its subsidiaries have conducted their businesses in compliance with applicable antiAnti-corruption laws Corruption Laws and have instituted and maintained maintained, and will continue to maintain maintain, policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable antiAnti-corruption lawsCorruption Laws.
(v) The operations of the Selling Shareholder and its subsidiaries are and have been conducted at all times in material compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the best knowledge of the Selling Shareholder, threatened.
(n) This Agreement is in proper form under the laws of Norway for the enforcement thereof against the Selling Shareholder, and to ensure the legality, validity, enforceability or admissibility into evidence in Norway of this Agreement.
(o) The courts of Norway would recognize as a valid judgment any final monetary judgment relating to the Agreement obtained against the Selling Shareholder in the courts of the State of New York.
(p) Neither the Selling Shareholder nor any of its subsidiaries nor any of its or their properties or assets has any immunity from the jurisdiction of any court or from any legal process (whether through service or notice, attachment prior to judgment, attachment in aid of execution or otherwise) under the laws of Norway. The irrevocable and unconditional waiver and agreement of the Selling Shareholder contained in Section 19(a) not to plead or claim any such immunity in any legal action, suit or proceeding based on this Agreement is valid and binding under the laws of Norway.
(q) The choice of law of the State of New York as the governing law of this Agreement is a valid choice of law under the laws of Norway and will be honored by the courts of Norway.
Appears in 2 contracts
Samples: Underwriting Agreement (VEON Ltd.), Underwriting Agreement (Telenor East Holding II As)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriters Underwriter that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement will not contravene any provision of applicable law, or the certificate memorandum and articles of incorporation or by-laws association of the Selling Shareholder (if the Selling Shareholder is a corporation)Shareholder, or any agreement or other instrument binding upon the Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder except, in each case, where any such contravention would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereunderShareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Selling Shareholder of its obligations under this Agreement of the Selling ShareholderAgreement, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares, except where the failure to obtain such consent, approval, authorization or order of, or qualification with, any governmental body or agency would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereunder.
(c) The Selling Shareholder has, and on the Closing Date will have, 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 to be sold by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such Shares.
(d) [Reserved].
(e) Upon payment for the Shares to be sold by the Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the UnderwritersUnderwriter, 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 Underwriter (assuming that neither DTC nor any such the Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (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 Underwriter 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 Underwriter with respect to such security entitlement; for purposes of this representation, the 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 register in accordance with its certificate memorandum and articles of incorporation, bylaws association and applicable law, (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 Underwriter on the records of DTC will have been made pursuant to the UCC.
(f) The Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any 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, (ii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (iiiii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, provided that such the representations and warranties set forth in this subsection (gparagraph 2(e) apply only are limited to statements or omissions in the Registration Statement or Prospectus made in reliance upon and in conformity with Shareholder Information (defined below) information relating to the Selling Shareholder furnished to the Company in writing by or on behalf of the Selling Shareholder expressly for use in the Registration Statement, the Prospectus, the Time of Sale Prospectus and or any amendments or supplements thereto.
(i) None of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea, Sudan and Syria).
(ii) The Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past five years, the Selling Shareholder has not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(a) None of the Selling Shareholder or its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (b) the Selling Shareholder and its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(v) The operations of the Selling Shareholder and its subsidiaries are and have been conducted at all times in material compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Selling Shareholder, threatened.
Appears in 2 contracts
Samples: Underwriting Agreement (Seagate Technology), Underwriting Agreement (Seagate Technology)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement will not contravene any provision of applicable law, or the certificate of incorporation or by-laws of the Selling Shareholder (if the Selling Shareholder is a corporation)Shareholder, or any agreement or other instrument binding upon the Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder except, in each case, where any such contravention would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereunderShareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Selling Shareholder of its obligations under this Agreement of the Selling ShareholderAgreement, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares, except where the failure to obtain such consent, approval, authorization or order of, or qualification with, any governmental body or agency would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereunder.
(c) The Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares to be sold by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such Shares.
(d) [Reserved].
(e) Upon payment for the Shares to be sold by the 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 New York Uniform Commercial Code (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, the 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 certificate of incorporation, bylaws and applicable law, (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.
(f) The Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(g1) (i) The the Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any 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, (ii2) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (3) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (iii4) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that such the representations and warranties set forth in this subsection (gparagraph 2(a)(v) apply only are limited to statements or omissions made in reliance upon and in conformity with Shareholder Information (defined below) information relating to the Selling Shareholder furnished to the Company in writing by or on behalf of the Selling Shareholder expressly for use in the Registration Statement, the Time of Sale Prospectus, the Time of Sale Prospectus and or any amendments or supplements thereto.
(i) None of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea, Sudan and Syria).
(iif) The Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds has no reason to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner believe that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past five years, the Selling Shareholder has not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(a) None of the Selling Shareholder or its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (b) the Selling Shareholder and its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering Company contained in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption lawsSection 1 are not true and correct.
(v) The operations of the Selling Shareholder and its subsidiaries are and have been conducted at all times in material compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Selling Shareholder, threatened.
Appears in 2 contracts
Samples: Underwriting Agreement (MSCI Inc.), Underwriting Agreement (MSCI Inc.)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder, and constitutes the valid and binding agreement of the Selling Shareholder.
(b) The At the Closing and upon execution and delivery of the Letter Agreement re: Share Sale (the “Letter Agreement”) between the Selling Shareholder, Oaktree Fund Administration, LLC and Oaktree Capital Management, L.P. (together with Oaktree Fund Administration, LLC, “Oaktree”), the execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement Agreement, the custody agreement signed by the Selling Shareholder and Computershare Trust Company, N.A., as Custodian, relating to the deposit of the Shares (the “Custody Agreement”) will not contravene any provision of (i) applicable law, or (ii) the certificate of incorporation or by-laws of the Selling Shareholder (if the Selling Shareholder is a corporation), or (iii) any agreement or other instrument binding upon the Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder exceptShareholder, except that in each case, where any such contravention the case of clauses (i) and (iii) as would not reasonably be expected to individually, or in the aggregate, have a material adverse effect on the Selling Shareholder or on the power and ability of the Selling Shareholder to perform its obligations hereunder, under this Agreement; and no consent, approval, authorization or order of, or qualification with, any governmental body body, agency or agency court is required for the performance by the Selling Shareholder of its obligations under this Agreement or the Custody Agreement of the Selling Shareholder, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares, except where the failure to obtain such consent, approval, authorization or order of, or qualification with, any governmental body or agency would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereunder.
(c) The Selling Shareholder (i) has, and on the Closing Date will have, 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 to Shares, which will, as of the Closing Date and upon execution and delivery by Oaktree of the Letter Agreement, be sold by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances encumbrances, and (ii) has the legal right and power, and all authorization and approval required by law, to enter into this Agreement and the Custody Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such Shares.
(d) [Reserved]The Custody Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder and constitutes the valid and binding agreement of the Selling Shareholder.
(e) Upon payment for the Shares to be sold by the 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 New York Uniform Commercial Code (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, the 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 certificate of incorporation, bylaws and applicable law, (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.
(f) The Selling Shareholder has delivered to the Representative an executed lock-up agreement in substantially the form attached hereto as Exhibit A.
(g) The Selling Shareholder is familiar with the Registration Statement, the Time of Sale Prospectus and the Prospectus and has no knowledge of any material fact, condition or information not disclosed in the Registration Statement, the Time of Sale Prospectus or the Prospectus that has had, or may have, a material adverse effect on the Company and its subsidiaries, taken as a whole. The Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Registration Statement, the Time of Sale Prospectus or the Prospectus to sell its the Shares pursuant to this Agreement.
(g) (i) The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any 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, (iiiii) the Registration Statement and the Prospectus comply and, as amended or supplemented, if applicable, will comply in all material respects with the Securities Act, and the applicable rules and regulations of the Commission thereunder, (iv) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, with respect to the Selling Shareholder Information (v) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (iiivi) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, provided that such that the representations and warranties set forth in this subsection (gSection 2(h) do not apply to statements or omissions in the Registration Statement, the Time of Sale Prospectus or the Prospectus based upon the Underwriter Information; and provided further that the representations and warranties set forth in this Section 2(h) apply only to statements or omissions made in reliance upon and in conformity with Shareholder Information (defined below) information relating to the Selling Shareholder furnished in writing to the Company by or on behalf of the Selling Shareholder expressly specifically for use therein; it being understood that the only such information furnished in writing to the Company by the Selling Shareholder specifically for use therein is that information relating to the Selling Shareholder under the caption “Selling Shareholder” in the Registration Statement, the Prospectus, the Time of Sale Prospectus and any amendments or supplements theretothe Prospectus (such information, the “Selling Shareholder Information”).
(i) None of Neither the Selling Shareholder or nor any of its subsidiaries, ornor, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea, Sudan Syria, the Crimea Region located in Ukraine, and Syriathe so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic and any other Covered Region of Ukraine as may be determined by the U.S. Secretary of the Treasury pursuant to Executive Order 14065).
(ii) The Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past five years, the The Selling Shareholder has not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(a) None of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (b) the Selling Shareholder and each of its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein herein; and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, payment promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(v) The operations of the Selling Shareholder and each of its subsidiaries are and have been conducted at all times in material compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, or to the knowledge of the Selling Shareholder, threatened.
(j) The Selling Shareholder represents and warrants that it is not (i) an employee benefit plan subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), (ii) a plan or account subject to Section 4975 of the Internal Revenue Code of 1986, as amended or (iii) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R. 2510.3-101, or otherwise.
(k) Except for any Swiss federal stamp duty on transfers of securities for consideration in the secondary market, which may be due by, or pertain to, such Underwriters or such purchasers procured by Underwriters that are qualified as Swiss securities dealers for purposes of Swiss federal stamp duty legislation, no stamp, documentary, issuance, registration, transfer, withholding, capital gains, income or other taxes or duties are payable by or on behalf of the Underwriters, the Company or any of its subsidiaries in Switzerland or to any taxing authority thereof or therein in connection with (i) the execution, delivery or consummation of this Agreement, (ii) the sale and delivery of the Shares to the Underwriters or purchasers procured by the Underwriters, or (iii) the resale and delivery of the Shares by the Underwriters in the manner contemplated herein.
(l) The Selling Shareholder has the power to submit, and pursuant to Section 18 has, to the extent permitted by law, legally, validly, effectively and irrevocably submitted, to the jurisdiction of the Specified Courts (as defined in Section 18), and has the power to designate, appoint and empower, and pursuant to Section 18, has legally, validly and effectively designated, appointed and empowered an agent for service of process in any suit or proceeding based on or arising under this Agreement in any of the Specified Courts.
(m) Neither the Selling Shareholder nor any of its subsidiaries has taken, directly or indirectly, without giving effect to the activities of the Underwriters, any action designed to or that would reasonably be expected to cause or result in stabilization or manipulation of the price of the Common Shares or of any “reference security” (as defined in Regulation M) with respect to the Common Shares, whether to facilitate the sale or resale of the Shares or otherwise, and has taken no action which would directly or indirectly violate Regulation M.
Appears in 2 contracts
Samples: Underwriting Agreement (ADC Therapeutics SA), Underwriting Agreement (Auven Therapeutics Holdings Lp)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriters as of the date hereof and as of the Closing Date that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The deposit of the Underlying Shares by the Selling Shareholder with the Depositary against issuance of the ADRs evidencing the ADSs to be delivered by the Selling Shareholder and the execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement will not contravene any provision of applicable law, or the certificate of incorporation or by-laws articles of association (vedtekter) of the Selling Shareholder (if the Selling Shareholder is a corporation)Shareholder, or any agreement or other instrument binding upon the Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder except, in each case, where any such contravention would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereunderShareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Selling Shareholder of its obligations under this Agreement of the Selling ShareholderAgreement, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares, except where the failure to obtain such consent, approval, authorization or order of, or qualification with, any governmental body or agency would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereunderSecurities.
(c) The Selling Shareholder has, beneficially owns and on the Closing Date will have, beneficially own or has and will have on the Closing Date a valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Securities and the Underlying Shares to be represented by the ADSs to be sold by the Selling Shareholder hereunder, free and clear of all security interests, claims, liens, equities or other encumbrances encumbrances; and the Selling Shareholder has the legal right and power, and all authorization and approval required by law, to enter into the Deposit Agreement and to deposit the Underlying Shares with the Depositary against the issuance of the ADRs evidencing the ADSs to be delivered by the Selling Shareholder.
(d) The Selling Shareholder has the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares Securities to be sold by the Selling Shareholder or a security entitlement in respect of such Shares.
(d) [Reserved]Securities.
(e) Upon payment for The ADSs representing the Underlying Shares to be sold by were deposited in accordance with the Selling Shareholder pursuant to this Agreementprovisions of the Deposit Agreement and were duly issued, and, upon the sale and delivery of such Shares, as directed the ADRs to the person(s) procured by the Underwriters, the person(s) in whose name(s) the ADRs are registered will be entitled to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares rights in the name of Cede or such other nominee and ADSs representing the crediting of such Underlying 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 New York Uniform Commercial Code (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, the Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered specified in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (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 UCCDeposit Agreement.
(f) No stamp, documentary, issuance, registration, transfer, withholding, capital gains, income or other taxes or duties are payable by or on behalf of the Underwriters, the Company or any of its subsidiaries in Norway or to any taxing authority thereof or therein in connection with (i) the execution, delivery or consummation of this Agreement, (ii) the sale and delivery of the Securities to the Underwriters or purchasers procured by the Underwriters, or (iii) the resale and delivery of the Securities by the Underwriters in the manner contemplated herein.
(g) The statements set forth under the heading “Material U.S. Federal Income Tax Considerations” in the Registration Statement or any amendment thereto, to the extent that they relate to matters of U.S. federal income tax law and legal conclusions with respect thereto, other than the statements under the heading “Passive Investment Company Rules” relating to the Company’s status under the U.S. federal income tax rules defining the term “passive foreign investment company”, to the extent that they relate to matters of U.S. federal income tax law and legal conclusions with respect thereto, are accurate and complete in all material respects.
(h) The Selling Shareholder is not prompted (i) an employee benefit plan subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), (ii) a plan or account subject to Section 4975 of the Internal Revenue Code of 1986, as amended, or (iii) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R. 2510.3-101, or otherwise.
(i) The Selling Shareholder Information in the Registration Statement or any amendment thereof constitutes a fair summary of the matters described therein.
(j) The Selling Shareholder has the power to submit, and pursuant to Section 19(a) has, to the extent permitted by law, legally, validly, effectively and irrevocably submitted, to the jurisdiction of the Specified Courts, and has the power to designate, appoint and empower, and pursuant to Section 19(c), has legally, validly and effectively designated, appointed and empowered an agent for service of process in any information concerning suit or proceeding based on or arising under this Agreement in any of the Specified Courts.
(k) The Selling Shareholder has no reason to believe that the representations and warranties of the Company contained in Section 1 are not true and correct, is familiar with the Registration Statement, the Time of Sale Prospectus and the Prospectus and has no knowledge of any material fact, condition or its subsidiaries which is information not set forth disclosed in the Time of Sale Prospectus to sell its Shares pursuant to this Agreementthat has had, or may have, a Material Adverse Effect.
(gl) (i) The Each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) each of the Registration Statement and the ADR Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any 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, (iiiii) the Registration Statement, the ADR Registration Statement and the Prospectus comply and, as amended or supplemented, if applicable, will comply in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder, (iv) the Time of Sale Prospectus does not, and at the time of each sale of the Shares Securities in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (v) each live road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (iiivi) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, provided not misleading, except that such the representations and warranties set forth in this subsection (gparagraph 2(l) do not apply only to statements or omissions made in reliance the Registration Statement or the Prospectus based upon and in conformity with Shareholder Information (defined below) information relating to any Underwriter furnished to the Selling Shareholder furnished Company in writing by or on behalf of the Selling Shareholder such Underwriter through you expressly for use in the Registration Statement, the Prospectus, the Time of Sale Prospectus and any amendments or supplements theretotherein.
(i) None of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof, or other person associated with or acting on behalf of the Selling Shareholder or any of its subsidiaries, is a Person that is, or is owned or controlled by one a Sanctioned Person, or more Persons that are:
(A) the subject of any Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea, Sudan and Syria)Sanctioned Country.
(ii) The Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Sanctioned Person or in any country or territory that, at the time of such funding or facilitation, is the subject of SanctionsSanctioned Countries; or
(B) in any other manner that will if such action would, in each case, result in a violation of or constitute sanctionable activity under any Sanctions laws by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past five years, the Selling Shareholder has and its subsidiaries have not knowingly engaged in, is are not now knowingly engaged in, and will not engage in, any dealings or transactions with any Sanctioned Person, or in any country or territorySanctioned Country, that at other than such limited telecommunications-related transactions with Sanctioned Countries as are permitted under the time terms of the dealing or transaction is or was relevant Sanctions (including, without limitation, those transactions disclosed in the subject of SanctionsCompany’s Annual Report on Form 20-F for the fiscal year ended December 31, 2018).
(a) None of the Selling Shareholder or its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, affiliate thereof, or affiliate thereof other person associated with or acting on behalf of the Selling Shareholder has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable antiAnti-corruption lawsCorruption Laws; (b) the Selling Shareholder and its subsidiaries have conducted their businesses in compliance with applicable antiAnti-corruption laws Corruption Laws and have instituted and maintained maintained, and will continue to maintain maintain, policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable antiAnti-corruption lawsCorruption Laws.
(v) The operations of the Selling Shareholder and its subsidiaries are and have been conducted at all times in material compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the best knowledge of the Selling Shareholder, threatened.
(n) This Agreement is in proper form under the laws of Norway for the enforcement thereof against the Selling Shareholder, and to ensure the legality, validity, enforceability or admissibility into evidence in Norway of this Agreement.
(o) The courts of Norway would recognize as a valid judgment any final monetary judgment relating to the Agreement obtained against the Selling Shareholder in the courts of the State of New York.
(p) Neither the Selling Shareholder nor any of its subsidiaries nor any of its or their properties or assets has any immunity from the jurisdiction of any court or from any legal process (whether through service or notice, attachment prior to judgment, attachment in aid of execution or otherwise) under the laws of Norway. The irrevocable and unconditional waiver and agreement of the Selling Shareholder contained in Section 19(a) not to plead or claim any such immunity in any legal action, suit or proceeding based on this Agreement is valid and binding under the laws of Norway.
(q) The choice of law of the State of New York as the governing law of this Agreement is a valid choice of law under the laws of Norway and will be honored by the courts of Norway.
Appears in 2 contracts
Samples: Underwriting Agreement (VEON Ltd.), Underwriting Agreement (Telenor East Holding II As)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriters as of the date hereof and as of the Closing Date that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The sale and delivery of the Firm Shares by the Selling Shareholder, the deposit of the Underlying Shares by the Selling Shareholder with the Depositary against issuance of the ADRs evidencing the ADSs to be delivered by the Selling Shareholder, the European Share Deposit and the execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement will not contravene any provision of applicable law, or the certificate of incorporation or by-laws articles of association (vedtekter) of the Selling Shareholder (if the Selling Shareholder is a corporation)Shareholder, or any agreement or other instrument binding upon the Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder except, in each case, where any such contravention would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereunderShareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Selling Shareholder of its obligations under this Agreement of the Selling ShareholderAgreement, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares, except where the failure to obtain such consent, approval, authorization or order of, or qualification with, any governmental body or agency would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereunderSecurities.
(c) The Selling Shareholder has, beneficially owns and on the Closing Date will have, beneficially own or has and will have on the Closing Date a valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Securities and the Underlying Shares to be represented by the ADSs to be sold by the Selling Shareholder hereunder, free and clear of all security interests, claims, liens, equities or other encumbrances encumbrances; and the Selling Shareholder has the legal right and power, and all authorization and approval required by law, to enter into the Deposit Agreement and to deposit the Underlying Shares with the Depositary against the issuance of the ADRs evidencing the ADSs to be delivered by the Selling Shareholder; the Selling Shareholder has valid title to the Common Shares deposited in (as a result of the European Share Deposit), and to be transferred through, Euroclear NL, in the manner contemplated by this Agreement and the Prospectus.
(d) The Selling Shareholder has the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares Securities to be sold by the Selling Shareholder or a security entitlement in respect of such Shares.
(d) [Reserved]Securities.
(e) Upon payment for The ADSs representing the Underlying Shares to be sold by were deposited in accordance with the Selling Shareholder pursuant to this Agreementprovisions of the Deposit Agreement and were duly issued, and, upon the sale and delivery of such Shares, as directed the ADRs to the person(s) procured by the Underwriters, the person(s) in whose name(s) the ADRs are registered will be entitled to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares rights in the name of Cede or such other nominee and ADSs representing the crediting of such Underlying 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 New York Uniform Commercial Code (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, the Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered specified in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (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 UCCDeposit Agreement.
(f) No stamp, documentary, issuance, registration, transfer, withholding, capital gains, income or other taxes or duties are payable by or on behalf of the Underwriters, the Company or any of its subsidiaries in Norway or to any taxing authority thereof or therein in connection with (i) the execution, delivery or consummation of this Agreement, (ii) the sale and delivery of the Securities to the Underwriters or purchasers procured by the Underwriters, or (iii) the resale and delivery of the Securities by the Underwriters in the manner contemplated herein.
(g) The statements set forth under the heading “Material U.S. Federal Income Tax Considerations” in the Registration Statement or any amendment thereto, to the extent that they relate to matters of U.S. federal income tax law and legal conclusions with respect thereto, other than the statements under the heading “Passive Investment Company Rules” relating to the Company’s status under the U.S. federal income tax rules defining the term “passive foreign investment company”, to the extent that they relate to matters of U.S. federal income tax law and legal conclusions with respect thereto, are accurate and complete in all material respects.
(h) The Selling Shareholder is not prompted Information in the Registration Statement or any amendment thereof constitutes a fair summary of the matters described therein.
(i) The Selling Shareholder has the power to submit, and pursuant to Section 19(a) has, to the extent permitted by law, legally, validly, effectively and irrevocably submitted, to the jurisdiction of the Specified Courts, and has the power to designate, appoint and empower, and pursuant to Section 19(c), has legally, validly and effectively designated, appointed and empowered an agent for service of process in any information concerning suit or proceeding based on or arising under this Agreement in any of the Specified Courts.
(j) The Selling Shareholder has no reason to believe that the representations and warranties of the Company contained in Section 1 are not true and correct, is familiar with the Registration Statement, the Time of Sale Prospectus and the Prospectus and has no knowledge of any material fact, condition or its subsidiaries which is information not set forth disclosed in the Time of Sale Prospectus to sell its Shares pursuant to this Agreementthat has had, or may have, a Material Adverse Effect.
(gk) (i) The Each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) each of the Registration Statement and the ADR Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any 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, (iiiii) the Registration Statement, the ADR Registration Statement and the Prospectus comply and, as amended or supplemented, if applicable, will comply in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder, (iv) the Time of Sale Prospectus does not, and at the time of each sale of the Shares Securities in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (v) each live road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (iiivi) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, provided not misleading, except that such the representations and warranties set forth in this subsection (gparagraph 2(k) do not apply only to statements or omissions made in reliance the Registration Statement or the Prospectus based upon and in conformity with Shareholder Information (defined below) information relating to any Underwriter furnished to the Selling Shareholder furnished Company in writing by or on behalf of the Selling Shareholder such Underwriter through you expressly for use in the Registration Statement, the Prospectus, the Time of Sale Prospectus and any amendments or supplements theretotherein.
(i) None of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof, or other person associated with or acting on behalf of the Selling Shareholder or any of its subsidiaries, is a Person that is, or is owned or controlled by one a Sanctioned Person, or more Persons that are:
(A) the subject of any Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea, Sudan and Syria)Sanctioned Country.
(ii) The Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Sanctioned Person or in any country or territory that, at the time of such funding or facilitation, is the subject of SanctionsSanctioned Countries; or
(B) in any other manner that will result in a violation of Sanctions sanctions laws by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past five years, the Selling Shareholder has and its subsidiaries have not knowingly engaged in, is are not now knowingly engaged in, and will not engage in, any dealings or transactions with any Sanctioned Person, or in any country or territorySanctioned Country, that at other than such limited telecommunications-related transactions with Sanctioned Countries as are permitted under the time terms of the dealing or transaction is or was relevant Sanctions (including, without limitation, those transactions disclosed in the subject of SanctionsCompany’s Annual Report on Form 20-F for the fiscal year ended December 31, 2016).
(a) None of the Selling Shareholder or its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, affiliate thereof, or affiliate thereof other person associated with or acting on behalf of the Selling Shareholder has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable antiAnti-corruption lawsCorruption Laws; (b) the Selling Shareholder and its subsidiaries have conducted their businesses in compliance with applicable antiAnti-corruption laws Corruption Laws and have instituted and maintained maintained, and will continue to maintain maintain, policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable antiAnti-corruption lawsCorruption Laws.
(v) The operations of the Selling Shareholder and its subsidiaries are and have been conducted at all times in material compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the best knowledge of the Selling Shareholder, threatened.
(m) This Agreement is in proper form under the laws of Norway for the enforcement thereof against the Selling Shareholder, and to ensure the legality, validity, enforceability or admissibility into evidence in Norway of this Agreement.
(n) The courts of Norway would recognize as a valid judgment any final monetary judgment relating to the Agreement obtained against the Selling Shareholder in the courts of the State of New York.
(o) Neither the Selling Shareholder nor any of its subsidiaries nor any of its or their properties or assets has any immunity from the jurisdiction of any court or from any legal process (whether through service or notice, attachment prior to judgment, attachment in aid of execution or otherwise) under the laws of Norway. The irrevocable and unconditional waiver and agreement of the Selling Shareholder contained in Section 19(a) not to plead or claim any such immunity in any legal action, suit or proceeding based on this Agreement is valid and binding under the laws of Norway.
(p) The choice of law of the State of New York as the governing law of this Agreement is a valid choice of law under the laws of Norway and will be honored by the courts of Norway.
Appears in 2 contracts
Samples: Underwriting Agreement (VEON Ltd.), Underwriting Agreement (Telenor East Holding II As)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to the Underwriter and agrees with each to the Company, and acknowledges that the Underwriter is relying upon such representations and warranties in purchasing the Shares that as of the Underwriters thatdate hereof and as of the Closing Date:
(a) This the Selling Shareholder has been duly organized and is validly existing and in good standing under the laws of the jurisdiction of its formation, is duly qualified to do business and is in good standing in each jurisdiction in which its ownership or lease of property or the conduct of its businesses requires such qualification, and has all power and authority necessary (acting through its general partner) to own or hold its respective properties, including to own the Shares to be sold by it to the Underwriter, and to conduct the businesses in which it is engaged, except where the failure to be so qualified, in good standing or have such power or authority would not, individually or in the aggregate, have a material impact on the Selling Shareholder’s ability to perform its obligations under this Agreement;
(b) this Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder (acting through its general partner);
(c) the sale of the Shares to be sold by the Selling Shareholder.
(b) The Shareholder hereunder and the execution and delivery by the Selling Shareholder (acting through its general partner) of, and the performance compliance by the Selling Shareholder with this Agreement, and the consummation of its obligations the transactions herein contemplated will not (A) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, this Agreement will not contravene any provision statute, indenture, mortgage, deed of applicable lawtrust, loan agreement, lease or other agreement or instrument to which the Selling Shareholder is a party or by which the Selling Shareholder is bound or to which any of the property or assets of the Selling Shareholder is subject, (B) result in any violation of the provisions of the certificate and articles of incorporation or by-laws or similar organizational documents of the Selling Shareholder (if the Selling Shareholder is a corporation)Shareholder, or (C) result in any agreement or other instrument binding upon the Selling Shareholder violation of any statute or any judgmentorder, order rule or decree regulation of any court or governmental body, agency or court body having jurisdiction over the Selling Shareholder or any of its subsidiaries or any property of the Selling Shareholder, except, in each casethe case of clauses (A) and (C), where any such contravention as would not reasonably be expected to have a material adverse effect on the materially impact such Selling Shareholder’s ability of the Selling Shareholder to perform its obligations hereunder, and under this Agreement;
(d) no consent, approval, authorization or order ofauthorization, order, registration or qualification with, of or with any court or governmental body or agency is required for the performance by the Selling Shareholder of its obligations under this Agreement Agreement, and the consummation by the Selling Shareholder of the transactions contemplated by this Agreement, in connection with the Shares to be sold by the Selling ShareholderShareholder hereunder, except (A) such as have been already obtained or as may be required by under the U.S. Securities Act, the rules and regulations of the SEC thereunder, the U.S. Exchange Act, the rules of the NYSE or TSX, state securities laws or Blue Sky laws or the rules of the various states FINRA, (B) such as have been already obtained or as may be required under the Canadian Securities Laws, (C) such as have been obtained under the laws and regulations of jurisdictions outside the United States in connection with which the offer Shares were offered and sale of the Shares, except (D) where the failure to obtain such consent, approval, authorization authorization, order, registration, qualification or order of, or qualification with, any governmental body or agency decree would not reasonably be expected to have a material adverse effect on the materially impact such Selling Shareholder’s ability of the Selling Shareholder to perform its obligations hereunder.under this Agreement;
(ce) The as of the date hereof and as of the Closing Time, the Selling Shareholder has, good and on the Closing Date will have, valid title to, to the Shares (or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code entitlement in respect of, the Shares thereof) to be sold by the Selling Shareholder hereunder, free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by lawLiens, to enter into this Agreement and to sell, transfer and deliver the Shares (or to a security entitlement in respect thereof) to be sold by the Selling Shareholder or a security entitlement in respect of such Shares.Shareholder;
(df) [Reserved].as of the date hereof and as of the Closing Time, no person, firm or corporation (other than the Underwriter) has any agreement or option, or right or privilege (whether pre-emptive or contractual) capable of becoming an agreement or option, for the purchase of any of the Shares owned by the Selling Shareholder;
(eg) Upon payment for all actions required to be taken by or on behalf of the Selling Shareholder, including the passing of all requisite resolutions, so as to duly sell and deliver the Shares held by the Selling Shareholder, have been taken;
(A) on the Closing Date, the Selling Shareholder will have beneficial ownership of the Shares to be sold by it, free and clear of any Liens; (B) the Selling Shareholder pursuant to this Agreementhas, delivery of such Sharesand will have, 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 Closing Date, the Underwriters full right, power and authority (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”)acting through its general partner) to such Shares)sell, (A) DTC shall assign, transfer and deliver the Shares to be a “protected purchaser” of such Shares within sold by it to 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 Underwriter hereunder; and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 upon delivery of the UCCShares to be sold by it and payment of the Purchase Price, the Underwriter will obtain beneficial ownership of the Shares to such Shares may be asserted against acquired from the Underwriters with respect to such security entitlement; for purposes Selling Shareholder, free and clear of this representation, any Lien;
(i) the Selling Shareholder may assume has not taken and will not take, directly or indirectly, any action that when such payment, delivery and crediting occur, (x) such Shares will have been registered is designed to or that has constituted or might reasonably be expected to cause or result in the name of Cede stabilization or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 manipulation of the UCC and (z) appropriate entries to the accounts price of any security of the several Underwriters on Company to facilitate the records sale or resale of DTC will have been made pursuant to the UCC.Shares;
(fj) The other than as contemplated hereby, there is no person acting at the request of the Selling Shareholder who is not prompted by entitled to any information concerning brokerage or agency fee in connection with the Company or its subsidiaries which is not set forth in sale of the Shares;
(k) none of the Registration Statement, the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain the Final Offering Documents or any amendments or supplements thereto includes any 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, (ii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit 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 and (iii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were mademisleading, provided that such representations and warranties set forth in this subsection (g) apply only to statements or omissions made in the Registration Statement, the Time of Sale Prospectus or the Final Offering Documents or any amendment or supplement that are made in reliance upon and in conformity with Shareholder Information (defined below) relating to the Selling Shareholder furnished in writing by or on behalf of Information;
(l) the Selling Shareholder expressly for use in the Registration Statement, the Prospectus, the Time of Sale Prospectus and any amendments or supplements thereto.
(i) None of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea, Sudan and Syria).
(ii) The Selling Shareholder will not, not directly or indirectly, indirectly use the proceeds of the offeringOffering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
person or entity (Ai) to fund or facilitate any activities of or business of or with any Person or in any country or territory person that, at the time of such funding or facilitation, is the subject target of Sanctions; or
, in violation of Sanctions, (Bii) to fund or facilitate any activities of or business in any Sanctioned Country in violation of sanctions or (iii) in any other manner that will result in a violation of Sanctions by any Person person (including any Person person participating in the offeringtransaction, whether as underwriterinitial purchaser, advisor, investor or otherwise).) of Sanctions in violation of Sanctions;
(iiim) For each delivery of the past five yearsPreliminary Offering Documents, the Final Offering Documents and any Offering Document Amendment in respect of the Preliminary Offering Document or the Final Offering Documents to the Underwriter by the Company in accordance with this Agreement will constitute representation and warranty of the Selling Shareholder to the Underwriter that at the respective times of delivery, the Selling Shareholder has not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(a) None of Information as applicable to the Selling Shareholder or its subsidiaries, or, to are true and correct in all material respects and contain no misrepresentation;
(n) neither the knowledge sale and delivery of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval Shares nor the application of the payment giving proceeds thereof by as described in each of the Registration Statement, the Time of Sale Prospectus and the Final Offering Documents will violate Regulation T, U or receipt X of money, property, gifts the Board of Governors of the Federal Reserve System or anything else any other regulation of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation such Board of any applicable anti-corruption lawsGovernors; and
(bo) the Selling Shareholder and its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue is not (i) an employee benefit plan subject to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds Title I of the offering in furtherance Employee Retirement Income Security Act of 1974, as amended (“ERISA”), (ii) a plan or account subject to Section 4975 of the Internal Revenue Code of 1986, as amended or (iii) an offerentity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, payment, promise to pay29 C.F.R. 2510.3-101, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption lawsotherwise.
(v) The operations of the Selling Shareholder and its subsidiaries are and have been conducted at all times in material compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Selling Shareholder, threatened.
Appears in 1 contract
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement, the Custody Agreement signed by the Selling Shareholder and Xxxxxx Xxxxxxx & Co. Incorporated, as Custodian, relating to the deposit of the Shares to be sold by the Selling Shareholder (the "Custody Agreement") and the Power of Attorney appointing certain individuals as attorneys-in-fact to the extent set forth therein, relating to the transactions contemplated hereby and by the Registration Statement (the "Power of Attorney") will not contravene any provision of applicable law, or the certificate of incorporation or by-laws of trust agreement governing the Selling Shareholder (if the Selling Shareholder is a corporation)Shareholder, or any agreement or other instrument binding upon the Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder except, in each case, where any such contravention would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereunderShareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Selling Shareholder of its obligations under this Agreement or the Custody Agreement or Power of Attorney of the Selling Shareholder, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares, except where the failure to obtain such consent, approval, authorization or order of, or qualification with, any governmental body or agency would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereunder.
(c) The Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “"security entitlement” " within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, of the Shares to be sold by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement, the Custody Agreement and the Power of Attorney and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such Shares.
(d) [Reserved]The Custody Agreement and the Power of Attorney have been duly authorized, executed and delivered by the Selling Shareholder and are valid and binding agreements of the Selling Shareholder.
(e) Upon payment for Delivery of the Shares to be sold by the Selling Shareholder and payment thereof pursuant to this Agreement, delivery of Agreement will pass valid title to 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 free 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 clear of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (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 UCCNew York Uniform Commercial Code, to each Underwriter who has purchased such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes without notice of this representation, the 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 certificate of incorporation, bylaws and applicable law, (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 UCCan adverse claim.
(f) The Selling Shareholder has no reason to believe that the representations and warranties of the Company contained in Section 1 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 Prospectus that has had, or may have, a material adverse effect on the Journal Enterprise. The Selling Shareholder is not prompted by any information concerning the Company Company, Old Journal or its their respective subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any 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, (ii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (iiiii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, provided that such the representations and warranties set forth in this subsection (gparagraph 2(g) apply only are limited to statements or omissions made in reliance upon and in conformity with Shareholder Information (defined below) information relating to the Selling Shareholder furnished to the Company in writing by or on behalf of the Selling Shareholder expressly for use in the Registration Statement, the Prospectus, the Time of Sale Prospectus and or any amendments or supplements thereto.
(i) None of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea, Sudan and Syria).
(ii) The Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past five years, the Selling Shareholder has not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(a) None of the Selling Shareholder or its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (b) the Selling Shareholder and its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(v) The operations of the Selling Shareholder and its subsidiaries are and have been conducted at all times in material compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Selling Shareholder, threatened.
Appears in 1 contract
Samples: Underwriting Agreement (Journal Co)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement and the Letter of Transmittal and Custody Agreement signed by the Selling Shareholder and Wachovia Bank, N.A., as Custodian, relating to the deposit of the Shares to be sold by the Selling Shareholder (the “Custody Agreement”) and the consummation of the transactions contemplated thereby will not contravene any provision of applicable law, or the certificate Last Will and Testament of incorporation or by-laws of Xxxxxx X. xxXxxx, by which the Selling Shareholder (if the Selling Shareholder is a corporation)was established, or any agreement or other instrument binding upon the Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder except, in each case, where any such contravention would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereunderShareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Selling Shareholder of its obligations under this Agreement of or the Selling ShareholderCustody Agreement, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares, except where the failure to obtain such consent, approval, authorization or order of, or qualification with, any governmental body or agency would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereunder.
(c) The Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares to be sold by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and the Custody Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such Shares.
(d) [Reserved]The Custody Agreement has been duly authorized and when executed and delivered by the Selling Shareholder will be a valid and binding agreement of the Selling Shareholder.
(e) Upon payment for Delivery of the Shares to be sold by the Selling Shareholder and payment therefor pursuant to this Agreement, delivery of Agreement will pass valid title to 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 free 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 clear of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (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 UCCNew York Uniform Commercial Code, to each Underwriter who has purchased such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes without notice of this representation, the 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 certificate of incorporation, bylaws and applicable law, (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 UCCan adverse claim.
(f) The Selling Shareholder has not taken and will not take, directly or indirectly, any action which is not prompted by designed to or which has constituted or which might reasonably be expected to cause or result in the stabilization or manipulation of the price of any information concerning security of the Company to facilitate the sale or its subsidiaries which is not set forth in resale of the Time of Sale Prospectus to sell its Shares pursuant to this AgreementShares.
(g) (i) The To the best of the knowledge of the Selling Shareholder, after due inquiry, the Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any 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, (ii) the Time of Sale Prospectus does not, Registration Statement and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectuscomply and, as then amended or supplemented by the Companysupplemented, if applicable, will not, contain any untrue statement of a comply in all material fact or omit to state a material fact necessary to make respects with the statements therein, in Securities Act and the light applicable rules and regulations of the circumstances under which they were made, not misleading Commission thereunder and (iii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, provided not misleading, except that such the representations and warranties set forth in this subsection (gparagraph 2(g) do not apply only to statements or omissions made in reliance the Registration Statement or the Prospectus based upon and in conformity with Shareholder Information (defined below) information relating to either Underwriter furnished to the Selling Shareholder furnished Company in writing by or on behalf of the Selling Shareholder such Underwriter expressly for use in the Registration Statement, the Prospectus, the Time of Sale Prospectus and any amendments or supplements theretotherein.
(ih) None the statements in the Base Prospectus under the caption “Xxxxxx X. xxXxxx Testamentary Trust,” and in the Prospectus Supplement under the captions “Prospectus Summary and Recent Developments— Xxxxxx X. xxXxxx Testamentary Trust” and “Selling Shareholder” insofar as such statements constitute summaries of the Selling Shareholder legal matters, documents or any of its subsidiariesproceedings referred to therein, or, to fairly present the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea, Sudan and Syria).
(ii) The Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past five years, the Selling Shareholder has not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(a) None of the Selling Shareholder or its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (b) the Selling Shareholder and its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(v) The operations of the Selling Shareholder and its subsidiaries are and have been conducted at all times in material compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries information called for with respect to such legal matters, documents and proceedings and fairly summarize the Anti-Money Laundering Laws is pending or, matters referred to the knowledge of the Selling Shareholder, threatenedtherein.
Appears in 1 contract
Samples: Underwriting Agreement (Dupont Alfred I Testamentary Trust)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriters Underwriter that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement and the Letter of Transmittal and Custody Agreement signed by the Selling Shareholder and Wachovia Bank, N.A., as Custodian, relating to the deposit of the Shares to be sold by the Selling Shareholder (the “Custody Agreement”) and the consummation of the transactions contemplated thereby will not contravene any provision of applicable law, or the certificate Last Will and Testament of incorporation or by-laws of Xxxxxx X. xxXxxx, by which the Selling Shareholder (if the Selling Shareholder is a corporation)was established, or any agreement or other instrument binding upon the Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder except, in each case, where any such contravention would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereunderShareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Selling Shareholder of its obligations under this Agreement of or the Selling ShareholderCustody Agreement, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares, except where the failure to obtain such consent, approval, authorization or order of, or qualification with, any governmental body or agency would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereunder.
(c) The Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares to be sold by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and the Custody Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such Shares.
(d) [Reserved]The Custody Agreement has been duly authorized and when executed and delivered by the Selling Shareholder will be a valid and binding agreement of the Selling Shareholder.
(e) Upon payment for Delivery of the Shares to be sold by the Selling Shareholder and payment therefor pursuant to this Agreement, delivery of Agreement will pass valid title to 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 free 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 clear of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (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 UCCNew York Uniform Commercial Code, to each Underwriter who has purchased such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes without notice of this representation, the 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 certificate of incorporation, bylaws and applicable law, (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 UCCan adverse claim.
(f) The Selling Shareholder has not taken and will not take, directly or indirectly, any action which is not prompted by designed to or which has constituted or which might reasonably be expected to cause or result in the stabilization or manipulation of the price of any information concerning security of the Company to facilitate the sale or its subsidiaries which is not set forth in resale of the Time of Sale Prospectus to sell its Shares pursuant to this AgreementShares.
(g) (i) The i)To the best of the knowledge of the Selling Shareholder, after due inquiry, the Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any 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, (ii) the Time of Sale Prospectus does not, Registration Statement and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectuscomply and, as then amended or supplemented by the Companysupplemented, if applicable, will not, contain any untrue statement of a comply in all material fact or omit to state a material fact necessary to make respects with the statements therein, in Securities Act and the light applicable rules and regulations of the circumstances under which they were made, not misleading Commission thereunder and (iii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, provided not misleading, except that such the representations and warranties set forth in this subsection (gparagraph 2(g) do not apply only to statements or omissions made in reliance the Registration Statement or the Prospectus based upon and in conformity with Shareholder Information (defined below) information relating to the Selling Shareholder Underwriter furnished to the Company in writing by or on behalf of the Selling Shareholder Underwriter expressly for use in the Registration Statement, the Prospectus, the Time of Sale Prospectus and any amendments or supplements theretotherein.
(ih) None the statements in the Base Prospectus under the caption “Xxxxxx X. xxXxxx Testamentary Trust,” and in the Prospectus Supplement under the captions “Prospectus Summary and Recent Developments—Xxxxxx X. xxXxxx Testamentary Trust” and “Selling Shareholder” insofar as such statements constitute summaries of the Selling Shareholder legal matters, documents or any of its subsidiariesproceedings referred to therein, or, to fairly present the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea, Sudan and Syria).
(ii) The Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past five years, the Selling Shareholder has not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(a) None of the Selling Shareholder or its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (b) the Selling Shareholder and its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(v) The operations of the Selling Shareholder and its subsidiaries are and have been conducted at all times in material compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries information called for with respect to such legal matters, documents and proceedings and fairly summarize the Anti-Money Laundering Laws is pending or, matters referred to the knowledge of the Selling Shareholder, threatenedtherein.
Appears in 1 contract
Samples: Underwriting Agreement (St Joe Co)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder hereby represents and warrants to the Company and agrees with each of the Underwriters thatUnderwriter as follows:
(a) The Selling Shareholder has caused certificates for the number of Shares to be sold by the Selling Shareholder hereunder to be delivered to the Company (in such capacity, the "Custodian"), endorsed in blank or with blank stock powers duly executed, with a signature appropriately guaranteed, such certificates to be held in custody by the Custodian for delivery, pursuant to the provisions of this Agreement and an agreement dated on or about the date hereof between the Custodian and the Selling Shareholder (the "Custody Agreement").
(b) The Selling Shareholder has granted an irrevocable power of attorney (the "Power of Attorney") to the Company and Craxx Xxxxx, xn behalf of the Selling Shareholder, to execute and deliver this Agreement and any other document necessary or desirable in connection with the transactions contemplated hereby and to deliver the shares to be sold by the Selling Shareholder pursuant hereto.
(c) This Agreement, the Custody Agreement, the Power of Attorney and the Lock-Up Agreement has have each been duly authorized, executed and delivered by or on behalf of the Selling Shareholder and, assuming due authorization, execution and delivery by the other parties hereto, each constitutes the valid and legally binding agreement of the Selling Shareholder, enforceable against the Selling Shareholder in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the -12- 13 enforcement of creditors' rights generally and by general equitable principals.
(bd) The execution and delivery by the Selling Shareholder of, of this Agreement and the performance by the Selling Shareholder of its obligations under, under this Agreement (i) will not contravene any provision of applicable law, statute, rule or the certificate of incorporation or by-laws of the Selling Shareholder (if the Selling Shareholder is a corporation), regulation or any agreement or other instrument binding upon the Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder exceptShareholder, in each case, where any such contravention would (ii) does not reasonably be expected to have a material adverse effect require on the ability part of the Selling Shareholder to perform its obligations hereunder, and no any consent, approval, authorization or order of, of or qualification with, registration or filing with any court or governmental agency or body or agency is required for the performance by the Selling Shareholder of its obligations under this Agreement of the Selling Shareholderhaving jurisdiction over it, except such as may be required by the securities or Blue Sky laws of the various states or other jurisdiction in connection with the offer and sale of the SharesShares which have been or will be effected in accordance with this Agreement, except where and (iii) will not result in the failure to obtain such consentcreation or imposition of any lien, approval, authorization charge or order of, encumbrance upon any property or qualification with, any governmental body or agency would not reasonably be expected to have a material adverse effect on the ability assets of the Selling Shareholder pursuant to perform its obligations hereunderthe terms of any agreement or instrument to which the Selling Shareholder is a party or by which the Selling Shareholder may be bound or to which any of the property or assets of the Selling Shareholder is subject.
(ce) The Selling Shareholder has, and on the each Closing Date on which Shares to be sold by the Selling Shareholder pursuant to this Agreement will have, valid and marketable title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, to the Shares to be sold by the Selling Shareholder on such Closing Date, free and clear of all any lien, claim, security interests, claims, liens, equities interest or other encumbrances encumbrance, including, without limitation, any restriction on transfer, except as otherwise described in the Registration Statement and the legal right and powerProspectus.
(f) The Selling Shareholder has, and all authorization on each Closing Date on which Shares to be sold by the Selling Shareholder pursuant to this Agreement will have, full legal right, power and authorization, and any approval required by law, to enter into this Agreement and to sell, assign, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement on such Closing Date in respect of such Sharesthe manner provided by this Agreement.
(d) [Reserved].
(eg) Upon delivery of and payment for the Shares to be sold by the Selling Shareholder on any Closing Date 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 New York Uniform Commercial Code (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 several Underwriters will acquire a receive 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, marketable title to such Shares may be asserted against the Underwriters with respect free and clear of any lien, claim, security interest or other encumbrance.
(h) All information relating to such security entitlement; for purposes of this representation, the Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered furnished in writing by the Selling Shareholder expressly for use in the name of Cede or another nominee designated Registration Statement and Prospectus is, and on each Closing Date on which Shares to be sold by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (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.
(f) The Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) The Registration StatementAgreement will be, when it became effectivetrue, did not contain andcorrect, as amended or supplementedand complete, if applicable, will not contain any 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, (ii) the Time of Sale Prospectus and does not, and at the time of on each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state any material fact necessary to make such information not misleading.
(i) The Selling Shareholder has reviewed the Registration Statement and Prospectus and, although the Selling Shareholder has not independently verified the accuracy or completeness of all the information contained therein, nothing has come to the attention of the Selling Shareholder that would lead the Selling Shareholder to believe that (i) on the Effective Date, the Registration Statement contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein in order to make the statements made therein not misleading and (ii) on the Effective Date, the Prospectus contained and, on each Closing Date contains, no untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, misleading.
(j) The sale of Shares by the Selling Shareholder pursuant to this Agreement is not misleading and (iii) prompted by the Prospectus does Selling Shareholder's knowledge of any material information concerning the Company or the Subsidiary which is not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, provided that such representations and warranties set forth in this subsection (g) apply only to statements or omissions made in reliance upon and in conformity with Shareholder Information (defined below) relating to the Selling Shareholder furnished in writing by or on behalf of the Selling Shareholder expressly for use in the Registration Statement, the Prospectus, the Time of Sale Prospectus and any amendments or supplements thereto.
(i) None of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea, Sudan and Syria).
(iik) The Selling Shareholder has not taken and will notnot take, directly or indirectly, use the proceeds any action designed to or that might reasonably be expected to cause or result in stabilization or manipulation of the offering, price of any security of the Company to facilitate the sale or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business resale of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise)Shares.
(iiil) For the past five years, the The Selling Shareholder has not knowingly engaged in, no actual knowledge that any representation or warranty of the Company set forth in Section 4 above is not now knowingly engaged in, and will not engage in, any dealings untrue or transactions with any Person, or inaccurate in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctionsmaterial respect.
(am) None The representations and warranties of the Selling Shareholder or its subsidiariesin the Custody Agreement are, or, and on each Closing Date on which Shares to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (b) be sold by the Selling Shareholder pursuant to this Agreement will be, true and its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption lawscorrect.
(v) The operations of the Selling Shareholder and its subsidiaries are and have been conducted at all times in material compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Selling Shareholder, threatened.
Appears in 1 contract
Samples: Underwriting Agreement (Talx Corp)
Representations and Warranties of the Selling Shareholder. The Each Selling Shareholder represents and warrants to and agrees with each of the Underwriters Underwriter that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the such Selling Shareholder.
(b) The execution and delivery by the such Selling Shareholder of, and the performance by the such Selling Shareholder of its obligations under, this Agreement Agreement, will not contravene any provision of applicable law, or the certificate of incorporation or by-laws of the such Selling Shareholder (if the such Selling Shareholder is a corporation), or any agreement or other instrument binding upon the such Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the such Selling Shareholder except, in each case, where any such contravention would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereunderShareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the such Selling Shareholder of its obligations under this Agreement of the Selling ShareholderAgreement, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares, except where the failure to obtain such consent, approval, authorization or order of, or qualification with, any governmental body or agency would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereunder.
(c) The Such Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares to be sold by the such Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the such Selling Shareholder or a security entitlement in respect of such Shares.
(d) [Reserved].
(e) Upon payment for the Shares to be sold by the such Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the UnderwritersUnderwriter, 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 account of the Underwriters Underwriter (assuming that neither DTC nor any such the Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (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 Underwriter 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 Underwriter with respect to such security entitlement; for purposes of this representation, the 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 certificate of incorporation, bylaws and applicable law, (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 account of the several Underwriters Underwriter on the records of DTC will have been made pursuant to the UCC.
(f) The Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any 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, (ii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (iii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, provided that such representations and warranties set forth in this subsection (g) apply only to statements or omissions made in reliance upon and in conformity with Shareholder Information (defined below) relating to the Selling Shareholder furnished in writing by or on behalf of the Selling Shareholder expressly for use in the Registration Statement, the Prospectus, the Time of Sale Prospectus and any amendments or supplements thereto.
(i) None of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea, Sudan and Syria).
(ii) The Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past five years, the Selling Shareholder has not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(a) None of the Selling Shareholder or its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (b) the Selling Shareholder and its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(v) The operations of the Selling Shareholder and its subsidiaries are and have been conducted at all times in material compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Selling Shareholder, threatened.
Appears in 1 contract
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriters Underwriter that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The execution and delivery of this Agreement and the sale and delivery of the Shares to be sold by the Selling Shareholder of, and the performance consummation of the transactions contemplated herein and compliance by the Selling Shareholder of with its obligations hereunder (i) do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of or default under, this Agreement will not contravene any provision contract, indenture, mortgage, deed of applicable lawtrust, loan or the certificate of incorporation credit agreement, note, license, lease or by-laws of the Selling Shareholder (if other agreement or instrument to which the Selling Shareholder is a corporation), party or any agreement or other instrument binding upon by which the Selling Shareholder may be bound, or result in the creation or imposition of any tax, lien, charge or encumbrance upon the Shares to be sold by the Selling Shareholder, (ii) nor will such action result in any violation of (A) the provisions of the charter or by-laws or other organizational instrument of the Selling Shareholder, if applicable, or (B) any applicable treaty, law, statute, rule, regulation, judgment, order order, writ or decree of any governmental bodygovernment, agency government instrumentality or court court, domestic or foreign, having jurisdiction over the Selling Shareholder exceptor any of its properties; except in the case of clause (i) or clause (ii)(B), in each casefor such conflicts, where any such contravention breaches, violations or defaults as would not reasonably be expected to have a impair in any material adverse effect on respect the ability consummation of the Selling Shareholder to perform its Shareholder‘s obligations hereunder, hereunder and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Selling Shareholder of its obligations under this Agreement of the Selling Shareholder, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares, except where the failure to obtain such consent, approval, authorization or order of, or qualification with, any governmental body or agency would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereunderthereunder.
(c) The Selling Shareholder has, and on the Closing Date will have, valid good title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, to the Shares to be sold by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a valid security entitlement in respect of such Shares.
(d) [Reserved].
(e) Upon payment of the purchase price for the Shares to be sold by the 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 The Depository Trust Company (“DTC”) (unless delivery of such Shares is unnecessary because such Shares are already in possession of Cede or such nominee), registration of such Shares in the name of Cede or such other nominee (unless registration of such Shares is unnecessary because such Shares are already registered in the name of Cede or such nominee), and the crediting of such Shares on the books of DTC to securities accounts (within the meaning of Section 8-501(a) of the Underwriters UCC) of the Underwriters, (assuming that neither DTC nor any such Underwriter has notice of does not have any “adverse claim (claim” within the meaning of Section 8-105 of the New York Uniform Commercial Code then in effect in the State of New York (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, (Bi) under Section 8-501 of the UCC, the Underwriters each Underwriter will acquire a valid “security entitlement entitlement” in respect of such Shares and (Cii) no action (whether framed in conversion, replevin, constructive trust, equitable lien, or other theory) based on any “adverse claim”, ,” within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters either Underwriter with respect to such security entitlement; for purposes of this representation, the Selling Shareholder may assume that when such payment, delivery (if necessary) and crediting occur, (xA) 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 certificate of incorporation, bylaws and applicable law, (yB) DTC will be registered as a “clearing corporation,” within the meaning of Section 8-102 of the UCC and UCC, (zC) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC, (D) to the extent DTC, or any other securities intermediary which acts as “clearing corporation” with respect to the Shares, maintains any “financial asset” (as defined in Section 8-102(a)(9) of the UCC) in a clearing corporation pursuant to Section 8-111 of the UCC, the rules of such clearing corporation may affect the rights of DTC or such securities intermediaries and the ownership interest of the Underwriters, (E) claims of creditors of DTC or any other securities intermediary or clearing corporation may be given priority to the extent set forth in Section 8-511(b) and 8-511(c) of the UCC and (F) if at any time DTC or other securities intermediary does not have sufficient Shares to satisfy claims of all of its entitlement holders with respect thereto then all holders will share pro rata in the Shares then held by DTC or such securities intermediary.
(e) The Selling Shareholder has not taken, and will not take, directly or indirectly, any action which is designed to or which has constituted or would be expected to cause or result in stabilization or manipulation of the price of any equity security, or any securities convertible into or exchangeable for, or that represent a right to receive an equity security or any equity-linked securities of the Company.
(f) The No filing with, or consent, approval, authorization, order, registration, qualification or decree of any arbitrator, court, governmental body, regulatory body, administrative agency or other authority, body or agency, domestic or foreign, is necessary or required for the performance by the Selling Shareholder of its obligations hereunder, or in connection with the sale and delivery of the Shares hereunder or the consummation of the transactions contemplated by this Agreement, except such as have been already obtained or as may be required under the Securities Act and the Securities Act Regulations, the rules of the New York Stock Exchange or state securities laws.
(g) Other than as set forth on Schedule II hereto, the Selling Shareholder has not prepared or had prepared on its behalf or used or referred to, any free writing prospectus, and has not distributed any written materials in connection with the offer or sale of the Shares.
(h) With the exception of Avalon Wealth Management, LLC, Duff & Xxxxxx, Xxxxxxx X’Xxxx + Partners, L.P., TCW Funds Distributors, TCG Securities, LLC and certain limited partners invested in funds affiliated with the Carlyle Group, neither the Selling Shareholder nor, to the Selling Shareholder’s knowledge, any of its affiliates directly, or indirectly through one or more intermediaries, controls, or is not prompted controlled by, or is under common control with any member firm of the Financial Industry Regulatory Authority (“FINRA”) or is a person associated with a member (within the meaning of the FINRA By-Laws) of FINRA.
(i) In respect of any statements in or omissions from the Time of Sale Prospectus or the Prospectus made in reliance upon and in conformity with information furnished to the Company by or on behalf of the Selling Shareholder specifically for inclusion therein, the Selling Shareholder hereby makes the same representations and warranties with respect to such information as the Company makes under paragraph 1(b) hereof, it being understood and agreed that such information consists only of its name and any information concerning relating to its holdings of the Company or its subsidiaries which is not Company’s common stock (including for the avoidance of doubt the information set forth in the table and footnotes thereto (except for percentages) in “Selling Stockholder”) as set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreementand the Prospectus (collectively, the “Selling Shareholder Information”).
(g) (ij) The Registration Statement, when it became effective, did not contain and, as amended Selling Shareholder will deliver to the Underwriters prior to or supplemented, if applicable, will not contain any 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, (ii) at the Time of Sale Prospectus does not, a properly completed and at the time of each sale executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof). Any certificate signed by any officer of the Shares in connection with Company or any of its subsidiaries delivered to the offering when Underwriters or to counsel for the Prospectus is not yet available to prospective purchasers Underwriters shall be deemed a representation and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented warranty by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (iii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, provided that such representations and warranties set forth in this subsection (g) apply only to statements or omissions made in reliance upon and in conformity with Shareholder Information (defined below) relating Company to the Selling Shareholder furnished in writing Underwriters as to the matters covered thereby; and any certificate signed by or on behalf of the Selling Shareholder expressly as such and delivered to the Underwriters or to counsel for use in the Registration Statement, the Prospectus, the Time of Sale Prospectus Underwriters pursuant to Section 6 hereof shall be deemed a representation and any amendments or supplements thereto.
(i) None of warranty by the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea, Sudan and Syria).
(ii) The Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether Underwriters as underwriter, advisor, investor or otherwise).
(iii) For the past five years, the Selling Shareholder has not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(a) None of the Selling Shareholder or its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (b) the Selling Shareholder and its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption lawsmatters covered thereby.
(v) The operations of the Selling Shareholder and its subsidiaries are and have been conducted at all times in material compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Selling Shareholder, threatened.
Appears in 1 contract
Samples: Underwriting Agreement (Booz Allen Hamilton Holding Corp)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriters Underwriter that:
(a) The Selling Shareholder now has, and on the Closing Date will have, valid and marketable title to the Shares to be sold by the Selling Shareholder, free and clear of any lien, claim, security interest or other encumbrance, including, without limitation, any restriction on transfer.
(b) The Selling Shareholder now has, and on the Closing Date will have, full legal right, power and authorization, and any approval required by law, to sell, assign transfer and deliver such Shares in the manner provided in this Agreement, and upon delivery of and payment for such Shares hereunder, the several Underwriters will acquire valid and marketable title to such Shares free and clear of any lien, claim, security interest, or other encumbrance.
(c) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The execution Shareholder and delivery by the Selling Shareholder of, is a valid and the performance by the Selling Shareholder of its obligations under, this Agreement will not contravene any provision of applicable law, or the certificate of incorporation or by-laws binding agreement of the Selling Shareholder (if enforceable against the Selling Shareholder is a corporation)in accordance with its terms, or any agreement except that (i) the enforceability hereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other instrument binding upon similar laws now or hereafter in effect relating to creditors' rights generally, (ii) the Selling Shareholder remedy of specific performance and other forms of equitable relief may be subject to certain equitable defenses and to judicial discretion , and (iii) rights to indemnity and contribution hereunder may be limited by federal or any judgment, order state securities laws and the public policy underlying such laws.
(d) Neither the execution and delivery of this Agreement by or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder except, in each case, where any such contravention would not reasonably be expected to have a material adverse effect on the ability behalf of the Selling Shareholder to perform its obligations hereunder, and no nor the consummation of the transactions herein contemplated by or on behalf of the Selling Shareholder requires any consent, approval, authorization or order of, or qualification filing or registration with, any court, regulatory body, administrative agency or other governmental body body, agency or agency is official (except such as may be required for under the performance by Act, such as may be required under state securities or Blue Sky laws governing the Selling Shareholder of its obligations under this Agreement purchase and distribution of the Selling Shareholder, except Shares or such as may be required by the securities NASD, all of which have been or Blue Sky laws of the various states will be effected in connection accordance with the offer and sale of the Shares, except where the failure to obtain such consent, approval, authorization this Agreement) or order conflicts or will conflict with or constitutes or will constitute a breach of, or qualification withdefault under, or violates or will violate, any governmental body agreement, indenture or agency other instrument to which the Selling Shareholder is a party or by which the Selling Shareholder is or may be bound or to which any of the Selling Shareholder's property or assets is subject, or any statute, law, rule, regulation, ruling, judgment, injunction, order or decree applicable to the Selling Shareholder or to any property or assets of the Selling Shareholder, in each case except for such conflicts, breaches, defaults, violations or encumbrances the existence of which, or such consents, the absence of which, would not reasonably be expected to not, singly or in the aggregate, have a material adverse effect on Material Adverse Effect or affect the power, authority or ability of the Selling Shareholder to perform its obligations hereunder.
(c) The Selling Shareholder has, and on consummate the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares to be sold transactions contemplated by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such Shares.
(d) [Reserved]Agreement.
(e) Upon payment for The Registration Statement and the Shares Prospectus, insofar as they relate to be sold by the Selling Shareholder pursuant to this AgreementShareholder, 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 do not 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 New York Uniform Commercial Code (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, the 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 certificate of incorporation, bylaws and applicable law, (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.
(f) The Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any an untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) in the Time of Sale Prospectus does not, and at the time of each sale case of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, ) not misleading and misleading.
(iiif) The Selling Shareholder does not have any knowledge or any reason to believe that the Registration Statement or the Prospectus does not contain and, as amended (or supplemented, if applicable, will not contain any amendment or supplement thereto) contains any untrue statement of a material fact or omit omits to state a any material fact required to be stated therein or necessary to make the statements thereintherein (in the case of the Prospectus, in the light of the circumstances under which they were made) not misleading, provided except that such representations this representation and warranties set forth in this subsection (g) warranty does not apply only to statements in or omissions from the Registration Statement or the Prospectus made in reliance upon and in conformity with Shareholder Information (defined below) information relating to any Underwriter furnished to the Selling Shareholder furnished Company in writing by or on behalf of the Selling Shareholder any Underwriter through you expressly for use in the Registration Statement, the Prospectus, the Time of Sale Prospectus and any amendments or supplements theretotherein.
(i) None of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea, Sudan and Syria).
(iig) The Selling Shareholder will nothas not taken, directly or indirectly, use the proceeds any action designed to or that might reasonably be expected to cause or result in stabilization or manipulation of the offeringprice of the Common Stock to facilitate the sale or resale of the Shares, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at except for the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating lock-up arrangements described in the offering, whether as underwriter, advisor, investor or otherwise)Prospectus.
(iii) For the past five years, the Selling Shareholder has not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(a) None of the Selling Shareholder or its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (b) the Selling Shareholder and its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(v) The operations of the Selling Shareholder and its subsidiaries are and have been conducted at all times in material compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Selling Shareholder, threatened.
Appears in 1 contract
Samples: Underwriting Agreement (Hastings Entertainment Inc)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to the Agent and the Company and agrees with each of the Underwriters thatAgent and the Company as follows:
(a) This The execution, delivery and performance of this Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder, the compliance by the Selling Shareholder with all the provisions hereof and the consummation of the transactions contemplated hereby will not (i) require any consent, approval, authorization or other order of, or qualification with, any court or governmental body or agency (except such as may be required under the securities or Blue Sky laws of the various states), (ii) conflict with or constitute a breach of any of the terms or provisions of, or a default under any indenture, loan agreement, mortgage, lease or other agreement or instrument to which the Selling Shareholder is a party or by which the Selling Shareholder or any property of the Selling Shareholder is bound or (iii) violate or conflict with any applicable law or any rule, regulation, judgment, order or decree of any court or any governmental body or agency having jurisdiction over the Selling Shareholder or any property of the Selling Shareholder.
(b) The execution This Agreement has been duly and delivery validly authorized, executed and delivered by the Selling Shareholder ofand is the legal, valid and the performance by the Selling Shareholder of its obligations under, this Agreement will not contravene any provision of applicable law, or the certificate of incorporation or by-laws of the Selling Shareholder (if the Selling Shareholder is a corporation), or any binding agreement or other instrument binding upon the Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder except, in each case, where any such contravention would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereunder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Selling Shareholder of its obligations under this Agreement obligation of the Selling Shareholder, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares, except where the failure to obtain such consent, approval, authorization or order of, or qualification with, any governmental body or agency would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereunder.
(c) The Selling Shareholder has, and on the each Closing Date will have, valid title tofull legal right, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares to be sold by the Selling Shareholder free power and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and powerauthority, and all authorization and approval required by law, to enter into this Agreement and to sell, assign, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such Sharesthe manner provided herein.
(d) [Reserved].
(e) The Selling Shareholder is the lawful owner of the Shares to be sold by the Selling Shareholder pursuant to this Agreement and has, and on each Closing Date with respect to the Shares to be sold on such Closing Date will have, good and clear title to such Shares, free of all restrictions on transfer, liens, encumbrances, security interests, equities and claims whatsoever. Upon delivery of and payment for the Shares to be sold by the Selling Shareholder pursuant to this AgreementAgreement on a Closing Date, 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 good 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 New York Uniform Commercial Code (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, clear title to such Shares may be asserted against will pass to the Underwriters with respect to such purchasers thereof, free of all restrictions on transfer, liens, encumbrances, security entitlement; for purposes interests, equities and claims whatsoever.
(e) To the knowledge of this representationthe Selling Shareholder, the 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 DTCduly authorized and are validly issued, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws fully paid and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8non-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 UCCassessable.
(f) The information in the Registration Statement under the caption "Principal and Selling Shareholders" which specifically relates to the Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any 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, (ii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is will not yet available to prospective purchasers and at the on any Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will notDate, contain any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (iii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, provided that such representations and warranties set forth in this subsection misleading.
(g) apply only to statements or omissions made in reliance upon and in conformity with Shareholder Information (defined below) relating to Neither the Selling Shareholder furnished in writing by or on behalf nor any affiliate of the Selling Shareholder expressly for use in the Registration Statementhas taken, the Prospectus, the Time of Sale Prospectus and any amendments or supplements thereto.
(i) None of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea, Sudan and Syria).
(ii) The Selling Shareholder they will notnot take, directly or indirectly, use any action designed to cause or result in, or which has constituted or which might reasonably be expected to constitute, the proceeds stabilization or manipulation of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past five years, the Selling Shareholder has not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time price of the dealing Shares or transaction is or was the subject of Sanctions.
(a) None of the Selling Shareholder or its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official Common Stock in order to influence official action, facilitate the sale or to any person in violation resale of any applicable anti-corruption laws; (b) the Selling Shareholder and its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption lawsShares.
(v) The operations of the Selling Shareholder and its subsidiaries are and have been conducted at all times in material compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Selling Shareholder, threatened.
Appears in 1 contract
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement will not contravene any provision of applicable lawlaw that is material to the consummation of the transactions contemplated hereby, or the certificate of incorporation or by-laws or other applicable charter documents of the Selling Shareholder (if the Selling Shareholder is a corporation)Shareholder, or any agreement or other instrument binding upon the Selling Shareholder that is material to the consummation of the transactions contemplated hereby or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder except, in each case, where any such contravention would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereunderShareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Selling Shareholder of its obligations under this Agreement of the Selling ShareholderAgreement, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares, except where the failure to obtain such consent, approval, authorization or order of, or qualification with, any governmental body or agency would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereunder.
(c) The Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares to be sold by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such Shares.
(d) [Reserved].
(e) Upon payment for the Shares to be sold by the 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 New York Uniform Commercial Code (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, the 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 certificate of incorporation, bylaws and applicable law, (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.
(fe) The Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any 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, (ii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading misleading, and (iii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, provided that such the representations and warranties set forth in this subsection (gparagraph 2(g) do not apply only to statements or omissions in the Registration Statement or Time of Sale Prospectus based upon information relating to any Underwriter furnished to the Company in writing by such Underwriter through you expressly for use therein; provided further that the representations and warranties set forth in this paragraph 2(g) are limited to statements or omissions made in reliance upon and in conformity with Shareholder Information (defined below) information specifically relating to the Selling Shareholder furnished to the Company in writing by or on behalf of the Selling Shareholder expressly for use in the Registration Statement, the Time of Sale Prospectus, the Time of Sale Prospectus and or any amendments or supplements thereto.
(i) None . The aggregate liability of the Selling Shareholder or any of its subsidiaries, or, for all claims under this Section 2(g) shall be limited to an amount equal to the knowledge aggregate Public Offering Price (less underwriting discounts and commissions) of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof, is a Person that is, or is owned or controlled shares sold by one or more Persons that are:
(A) the subject of any Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea, Sudan and Syria).
(ii) The Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past five years, the Selling Shareholder has not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctionsunder this Agreement.
(a) None of the Selling Shareholder or its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (b) the Selling Shareholder and its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(v) The operations of the Selling Shareholder and its subsidiaries are and have been conducted at all times in material compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Selling Shareholder, threatened.
Appears in 1 contract
Samples: Underwriting Agreement (Talecris Biotherapeutics Holdings Corp.)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriters Underwriter as to itself only that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement, the Custody Agreement signed by the Selling Shareholder and American Stock Transfer & Trust Company LLC, as Custodian, relating to the deposit of the Shares to be sold by the Selling Shareholder (the “Custody Agreement”) and the Power of Attorney appointing certain individuals as the Selling Shareholder’s attorneys-in-fact to the extent set forth therein, relating to the transactions contemplated hereby and by the Registration Statement (the “Power of Attorney”), will not contravene (i) any provision of applicable law, or (ii) if the Selling Shareholder is not a natural person, the certificate of incorporation or by-laws (or similar organizational document) of the Selling Shareholder (if the Selling Shareholder is a corporation)Shareholder, or (iii) any agreement or other instrument binding upon the Selling Shareholder or (iv) any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder exceptexcept in the case of clauses (i), in each case(iii) and (iv), where for any such contravention contraventions that would not not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereunderunder this Agreement, the Custody Agreement and the Power of Attorney, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency having jurisdiction over the Selling Shareholder is required for the performance by the Selling Shareholder of its obligations under this Agreement or the Custody Agreement, or Power of Attorney of the Selling Shareholder, except for (i) such registrations, consents, approvals, authorizations, orders, or qualifications as have been, or prior to the Closing Date will be, obtained or made, (ii) the registration of the offer and sale of the Shares under the Securities Act and such registrations, consents, approvals, authorizations, orders, or qualifications as may be required by under the Exchange Act, the securities or Blue Sky laws of the various states or the rules of FINRA in connection with the offer and sale of the Shares, except where the failure to obtain (iii) such consentregistrations, approvalconsents, authorization or order ofapprovals, authorizations, orders, or qualification withqualifications that, any governmental body or agency if not obtained, would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereunderconsummate the transactions contemplated by this Agreement and (iv) as described in the Registration Statement and the Time of Sale Prospectus.
(c) If the Selling Shareholder is not a natural person, the Selling Shareholder has been duly organized and is validly existing and in good standing under the laws of the jurisdiction of its organization.
(d) The Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares to be sold by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances (other than those created by this Agreement, the Custody Agreement, the Power of Attorney) and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and power to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such Shares.
(de) [Reserved]This Agreement, the Custody Agreement and the Power of Attorney, in each case to the extent the Shareholder is a party thereto, have been duly authorized, executed and delivered by the Selling Shareholder and are valid and binding agreements of the Selling Shareholder in accordance with their respective terms subject in each case to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, (ii) general equitable principles (whether considered in a proceeding in equity or at law) and (iii) an implied covenant of good faith and fair dealing.
(ef) The Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(g) Upon payment for the Shares to be sold by the such Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the UnderwritersUnderwriter, 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 Underwriter (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (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 Underwriter 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 successfully asserted against the Underwriters Underwriter with respect to such security entitlement; for purposes of this representation, the 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 certificate of incorporation, bylaws and applicable law, (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 Underwriter on the records of DTC will have been made pursuant to the UCC.
(fh) The Selling Shareholder, if the Selling Shareholder is not prompted by any information concerning the Chief Executive Officer or the Chief Financial Officer of the Company, has no reason to believe that the representations and warranties of the Company contained in Section 1 are not true and correct, is familiar with the Registration Statement, the Time of Sale Prospectus and the Prospectus and has no knowledge of any material fact, condition or its subsidiaries which is information not set forth disclosed in the Time of Sale Prospectus to sell or the Prospectus that has had, or may have, a material adverse effect on the Company and its Shares pursuant to this Agreementsubsidiaries, taken as a whole.
(gi) (i) The Each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) the Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain contain, as of the date of such amendment or supplement, any 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, (iiiii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (iiiiv) the Prospectus does not contain andProspectus, as amended or supplemented, will not contain as of its date and, as then amended and supplemented, if applicable, will not contain as of the date that any Additional Shares are delivered by the Selling Shareholder to the Underwriter in accordance with this Agreement, any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that such the representations and warranties set forth in this subsection (gparagraph 2(i) apply only are limited to statements or omissions made in reliance upon and in conformity with Shareholder Information (defined below) information relating to the Selling Shareholder furnished to the Company in writing by or on behalf of the Selling Shareholder expressly for use in the Registration Statement, the Time of Sale Prospectus, the Prospectus or any amendments or supplements thereto, it being understood and agreed that the only information furnished by the Selling Shareholder consists of the name of the Selling Shareholder, the number of offered shares, the address, beneficial ownership information with respect to the Selling Shareholder (excluding percentages) and such other information (excluding percentages) with respect to the Selling Shareholder which appear in the Time of Sale Prospectus in the table (and corresponding footnotes) under the caption “Principal and Selling Stockholders” (the “Selling Shareholder Information”).
(j) The Shares to be sold by the Selling Shareholder under this Agreement are not subject to any amendments option, warrant, put, call, right of first refusal or supplements theretoother right to purchase or otherwise acquire any such Shares other than pursuant to this Agreement.
(k) The Selling Shareholder has not taken and will not take, directly or indirectly, any action designed to or that constitutes or would reasonably be expected to 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.
(l) There is no broker, finder or other party that is entitled to receive from the Selling Shareholder any brokerage or finder’s fee or other fee or commission as a result of any of the transactions contemplated by this Agreement.
(i) None of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea, Sudan and Syria).
(ii) The Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For The Selling Shareholder (a) for the past five years, the Selling Shareholder 5 years has not knowingly engaged in, (b) is not now knowingly engaged in, and (c) will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(a) None of the Selling Shareholder or its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (b) the Selling Shareholder and its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein herein; and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(v) The operations of the Selling Shareholder and its subsidiaries are and have been conducted at all times in material compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the best knowledge of the Selling Shareholder, threatened.
Appears in 1 contract
Samples: Underwriting Agreement (Fairmount Santrol Holdings Inc.)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement and the Letter of Transmittal and Custody Agreement (the "Custody Agreement") signed by the Selling Shareholder and First Chicago Trust Company of New York, as Custodian, relating to the deposit of the Shares (the "CUSTODY AGREEMENT") will not contravene any provision of applicable law, or the certificate of incorporation limited partnership, limited partnership agreement or by-laws other organizational documents (if any) of the Selling Shareholder (if the Selling Shareholder is a corporation)Shareholder, or any agreement or other instrument binding upon the Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder except, in each case, where any such contravention would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereunderShareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Selling Shareholder of its obligations under this Agreement of or the Selling ShareholderCustody Agreement, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares, except where the failure to obtain such consent, approval, authorization or order of, or qualification with, any governmental body or agency would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereunder.
(c) The Selling Shareholder is the registered owner of the Shares and no person, other than the Selling Shareholder and the legal and beneficial owners of limited and general partnership interests in the Selling Shareholder, has any legal or beneficial interest in any of the Shares, and the Selling Shareholder has, and on the Closing Date and any Option Closing Date (as defined in Section 5) will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, to the Shares to be sold by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by lawlaw or other instruments binding upon the Selling Shareholder, to enter into this Agreement and the Custody Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such Shares.
(d) [Reserved]The Custody Agreement has been duly authorized, executed and delivered by the Selling Shareholder and is a valid and binding agreement of the Selling Shareholder.
(e) Upon payment for Delivery of the Shares will pass title to the Shares to be sold by the 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 free 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 clear of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”)) to such Shares)security interests, (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCCclaims, (B) under Section 8-501 of the UCCliens, the Underwriters will acquire a valid security entitlement in respect of such Shares equities 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, the 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 certificate of incorporation, bylaws and applicable law, (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 UCCother encumbrances.
(f) The Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any 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, (ii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (iiiii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, provided that such the representations and warranties set forth in this subsection (g) paragraph only apply only to statements or omissions made in reliance upon and in conformity with Shareholder Information (defined below) relating the information pertaining to the Selling Shareholder furnished or Carlyle under the captions "Prospectus Summary-- Certain Transactions in writing by or on behalf of the Selling Shareholder expressly for use in the Registration Statement, the Prospectus, the Time of Sale Prospectus and any amendments or supplements thereto.
(i) None of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea, Sudan and Syria).
(ii) The Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past five years, the Selling Shareholder has not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(a) None of the Selling Shareholder or its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (b) the Selling Shareholder and its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and Connection with the representations Offering," "Prospectus Summary- -Relationship with Thiokol," "Certain Transactions in Connection with the Offering," "The Company," "Principal Stockholders," "Relationship with Thiokol" and warranties contained herein "Arrangements Between the Company, Carlyle and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption lawsThiokol.
(v) The operations of the Selling Shareholder and its subsidiaries are and have been conducted at all times in material compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Selling Shareholder, threatened."
Appears in 1 contract
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement will not contravene any provision of applicable law, or the certificate of incorporation or by-laws limited liability company agreement of the Selling Shareholder (if the Selling Shareholder is a corporation)Shareholder, or any agreement or other instrument binding upon the Selling Shareholder that is material to the Selling Shareholder or that could adversely affect the Selling Shareholder’s ability to fulfill its obligations hereunder, or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder except, in each case, where any such contravention would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereunderShareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Selling Shareholder of its obligations under this Agreement of the Selling ShareholderAgreement, except such as have been obtained and made under the Securities Act and the Exchange Act and such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares, except where the failure to obtain such consent, approval, authorization or order of, or qualification with, any governmental body or agency would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereunder.
(c) The Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares to be sold by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such Shares.
(d) [Reserved].
(e) Upon payment for the Shares to be sold by the 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 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 a securities accounts account 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 New York Uniform Commercial Code (the “UCC”)) to such SharesShares and each such Underwriter acquired the interest in the Shares it has purchased under this Agreement in good faith), (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, the 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 certificate of incorporation, bylaws and applicable law, (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.
(fe) The Selling Shareholder is not prompted by any material non-public information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any 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, (ii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (iii) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (iiiiv) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, provided not misleading, except that such the representations and warranties set forth in this subsection (gparagraph 2(f) shall only apply only to statements or omissions made in reliance the Registration Statement or the Prospectus based upon and in conformity with Shareholder Information (defined below) information relating to the Selling Shareholder furnished in writing by or on behalf of the Selling Shareholder in writing expressly for use in the Registration Statement, the Prospectus, the Time of Sale Prospectus and any amendments or supplements theretotherein.
(i) None of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea, Sudan and Syria).
(ii) The Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past five years, the Selling Shareholder has not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(a) None of the Selling Shareholder or its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (b) the Selling Shareholder and its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(v) The operations of the Selling Shareholder and its subsidiaries are and have been conducted at all times in material compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Selling Shareholder, threatened.
Appears in 1 contract
Samples: Underwriting Agreement (Atlas Air Worldwide Holdings Inc)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder hereby represents and warrants to and agrees with each Underwriter as of the Underwriters thatdate hereof, as of the Firm Shares Closing Date and, as of each Option Shares Closing Date (if any), as follows:
(a) This Agreement has and the Lock-up Agreement signed by the Selling Shareholder have been duly authorized, executed and delivered by or on behalf of the Selling Shareholder and constitute valid and legally binding agreements of the Selling Shareholder, enforceable against the Selling Shareholder in accordance with their terms.
(b) The execution and delivery by the Selling Shareholder of, of this Agreement and the Selling Shareholder Lock-up Agreement and the performance by the Selling Shareholder of its obligations underthereunder, this Agreement including the sale and delivery of the Shares to be sold by the Selling Shareholder and the consummation of the transactions contemplated herein and compliance by the Selling Shareholder with its obligations hereunder, do not and will not not, whether with our without the giving of notice or the passage of time or both, (i) violate or contravene any provision of the charter or bylaws or other organizational instrument of the Selling Shareholder, if applicable, or any applicable law, statute, regulation, or the certificate of incorporation or by-laws of the Selling Shareholder (if the Selling Shareholder is a corporation), filing or any agreement or other instrument binding upon the Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder, (ii) conflict with or constitute a breach of, or default under, or result in the creation or imposition of any tax, lien, charge or encumbrance upon the shares to be sold by the Selling Shareholder except, in each case, where or any such contravention would not reasonably be expected to have a material adverse effect on the ability property or assets of the Selling Shareholder pursuant to perform its obligations hereunderthe terms of any agreement or instrument to which the Selling Shareholder is a party or by which the Selling Shareholder may be bound or to which any of the property or assets of the Selling Shareholder is subject, and no or (iii) require any consent, approval, authorization or order of, of or qualification with, registration or filing with any court or governmental agency or body having jurisdiction over it or agency is required for the performance by the Selling Shareholder of its obligations under this Agreement of the Selling Shareholderany other person, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares, except where the failure to obtain such consent, approval, authorization Shares which have been or order ofwill be effected in accordance with this Agreement, or qualification with, any governmental body or agency would not reasonably be expected the consent of Bank Leumi pursuant to have a material adverse effect on the ability of loan agreement with the Selling Shareholder to perform its obligations hereunderShareholder, which consent has been obtained.
(c) The Selling Shareholder has, and on the Firm Shares Closing Date and the Option Share Closing Date, if applicable, will have, valid and marketable title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, to the Shares to be sold by the Selling Shareholder free and clear of all any pledge, lien, claim, security interests, claims, liens, equities interest or other encumbrances encumbrance, including, without limitation, any restriction on transfer.
(d) The Selling Shareholder has, and on the Firm Shares Closing Date and the Option Share Closing Date, if applicable, will have, full legal right right, power and powerauthority, and all authorization and will have obtained any approval required by law, to enter into this Agreement and to sell, assign, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such Shares.
(d) [Reserved]the manner provided by this Agreement.
(e) Upon delivery of and payment for the Shares to be sold by the 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 New York Uniform Commercial Code (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 several Underwriters will acquire a receive 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, marketable title to such Shares may be asserted against the Underwriters with respect to such free and clear of any lien, claim, mortgage, pledge, security entitlement; for purposes of this representation, the Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede interest or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (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 UCCother encumbrance.
(f) The All information relating to the Selling Shareholder is not prompted furnished by any information concerning the Company or its subsidiaries which is not set forth Selling Shareholder for use in the Time of Sale Registration Statement and Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) The Registration Statementis, when it became effectiveand on each Closing Date will be, did not contain andtrue, as amended or supplementedcorrect, if applicableand complete, will not contain any 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, (ii) the Time of Sale Prospectus and does not, and at the time of on each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state any material fact necessary to make such information not misleading.
(g) The Selling Shareholder has reviewed the Registration Statement and Prospectus and, although the Selling Shareholder has not independently verified the accuracy or completeness of all the information contained therein, nothing has come to the attention of the Selling Shareholder that would lead the Selling Shareholder to believe that (i) on the Effective Date, the Registration Statement contained any untrue statement of a material fact or omitted to state any material fact with respect to the Selling Shareholder required to be stated therein in order to make the statements made therein not misleading and (ii) on the Effective Date the Prospectus contained and, on each Closing Date contains, any untrue statement of a material fact or omitted or omits to state any material fact with respect to the Selling Shareholder necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading and misleading.
(iiih) The sale of Shares by the Prospectus does Selling Shareholder pursuant to this Agreement is not contain and, as amended prompted by the Selling Shareholder’s knowledge of any material information concerning the Company or supplemented, if applicable, will any of its subsidiaries which is not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, provided that such representations and warranties set forth in this subsection (g) apply only to statements or omissions made in reliance upon and in conformity with Shareholder Information (defined below) relating to the Selling Shareholder furnished in writing by or on behalf of the Selling Shareholder expressly for use in the Registration Statement, the Prospectus, the Time of Sale Prospectus and any amendments or supplements thereto.
(i) None of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea, Sudan and Syria).
(ii) The Selling Shareholder has not taken and will notnot take, directly or indirectly, use the proceeds any action designed to or that might reasonably be expected to cause or result in stabilization or manipulation of the offering, or lend, contribute or otherwise make available such proceeds to price of any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past five years, the Selling Shareholder has not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time security of the dealing Company to facilitate the sale or transaction is or was the subject of Sanctions.
(a) None resale of the Selling Shareholder or its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (b) the Selling Shareholder and its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption lawsShares.
(v) The operations of the Selling Shareholder and its subsidiaries are and have been conducted at all times in material compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Selling Shareholder, threatened.
Appears in 1 contract
Samples: Underwriting Agreement (Camtek LTD)
Representations and Warranties of the Selling Shareholder. The --------------------------------------------------------- Selling Shareholder represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The execution and delivery by the Selling Shareholder of, and the performance by the such Selling Shareholder of its obligations under, this Agreement, the Custody Agreement signed by such Selling Shareholder and ____________, as Custodian, relating to the deposit of the Shares to be sold by such Selling Shareholder (the "Custody Agreement") and the Power of Attorney appointing certain individuals as such Selling Shareholder's attorneys-in-fact to the extent set forth therein, relating to the transactions contemplated hereby and by the Registration Statement (the "Power of Attorney"), will not contravene any provision of applicable law, or the certificate of incorporation or by-laws of the Selling Shareholder (if the Selling Shareholder is a corporation), law or any agreement or other instrument binding upon the Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder except, in each case, where any such contravention would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereunderShareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Selling Shareholder of its his obligations under this Agreement or the Custody Agreement or Power of the Attorney of such Selling Shareholder, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares, except where the failure to obtain such consent, approval, authorization or order of, or qualification with, any governmental body or agency would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereunder.
(c) The Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, to the Shares to be sold by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement, the Custody Agreement and the Power of Attorney and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such SharesShareholder.
(d) [Reserved]The Shares to be sold by the Selling Shareholder pursuant to this Agreement have been duly authorized and are validly issued, fully paid and non-assessable.
(e) Upon payment for The Custody Agreement and the Power of Attorney have been duly authorized, executed and delivered by the Selling Shareholder and are valid and binding agreements of the Selling Shareholder.
(f) Delivery of the Shares to be sold by the 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 New York Uniform Commercial Code (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 Agreement 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, pass title to such Shares may be asserted against the Underwriters with respect to such free and clear of any security entitlement; for purposes of this representationinterests, the Selling Shareholder may assume that when such paymentclaims, delivery liens, equities 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 certificate of incorporation, bylaws and applicable law, (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 UCCother encumbrances.
(f) The Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) The the Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any 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, (ii) the Time of Sale Prospectus does not, Registration Statement and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectuscomply and, as then amended or supplemented by the Companysupplemented, if applicable, will not, contain any untrue statement of a comply in all material fact or omit to state a material fact necessary to make respects with the statements therein, in Securities Act and the light applicable rules and regulations of the circumstances under which they were made, not misleading Commission thereunder and (iii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, provided not misleading, except that such the representations and warranties set forth in this subsection (gparagraph 2(g) do not apply only to statements or omissions made in reliance the Registration Statement or the Prospectus based upon and in conformity with Shareholder Information (defined below) information relating to any Underwriter furnished to the Selling Shareholder furnished Company in writing by or on behalf of the Selling Shareholder such Underwriter through you expressly for use in the Registration Statement, the Prospectus, the Time of Sale Prospectus and any amendments or supplements theretotherein.
(i) None of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea, Sudan and Syria).
(ii) The Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past five years, the Selling Shareholder has not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(a) None of the Selling Shareholder or its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (b) the Selling Shareholder and its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(v) The operations of the Selling Shareholder and its subsidiaries are and have been conducted at all times in material compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Selling Shareholder, threatened.
Appears in 1 contract
Samples: Underwriting Agreement (Excel Inc)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, under this Agreement will not contravene any provision of applicable law, or the certificate of incorporation or by-laws by‑laws of the Selling Shareholder (if the Selling Shareholder is a corporation)Shareholder, or any agreement or other instrument binding upon the Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder except, in each case, where any such contravention would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereunderShareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Selling Shareholder of its obligations under this Agreement of the Selling ShareholderAgreement, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares, except where the failure to obtain such consent, approval, authorization or order of, or qualification with, any governmental body or agency would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereunder.
(c) The Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 8‑501 of the New York Uniform Commercial Code in respect of, the Firm Common Shares, Preferred Shares and Additional Shares to be sold by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement Agreement, and to sell, transfer and deliver the Firm Common Shares, Preferred Shares and Additional Shares to be sold by the Selling Shareholder or a security entitlement in respect of such Firm Common Shares, Preferred Shares and Additional Shares.
(d) [Reserved].
(e) Upon payment for the Firm Common Shares, Preferred Shares and Additional Shares to be sold by the Selling Shareholder pursuant to this Agreement, delivery of such the Common Shares, including the Firm Converted Common Shares issuable upon conversion of the Preferred 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 Common Shares in the name of Cede or such other nominee and the crediting of such Common 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 8‑105 of the New York Uniform Commercial Code (the “UCC”)) to such Shares), (A) DTC shall be a “protected purchaser” of such Common Shares within the meaning of Section 8-303 8‑303 of the UCC, (B) under Section 8-501 8‑501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Common Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 8‑102 of the UCC, to such Common Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, the Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Common 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 certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 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.
(fe) The Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement[Reserved.]
(gf) (i) The the Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any 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, (ii) the Registration Statement and the Prospectus comply and, as amended or supplemented, if applicable, will comply in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder, (iii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (iv) each bona fide electronic road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (iiiv) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, provided not misleading, except that such the representations and warranties set forth in this subsection (gparagraph 2(f) do not apply only to statements or omissions in the Registration Statement or the Prospectus based upon information relating to any Underwriter furnished to the Company in writing by such Underwriter through you expressly for use therein; provided that the representations and warranties set forth in this paragraph 2(f) are limited to statements or omissions made in reliance upon and in conformity with Shareholder Information (defined below) information relating to the Selling Shareholder furnished to the Company in writing by or on behalf of the Selling Shareholder expressly for use in the Registration Statement, the Time of Sale Prospectus, the Prospectus or any amendments or supplements thereto, it being understood that such information with respect to the Selling Shareholder is limited to the name of the Selling Shareholder, the number of Common Shares and Preferred Shares offered by the Selling Shareholder and the address and other information with respect to the Selling Shareholder that appear in the footnotes under the caption “Selling Stockholder” in the Registration Statement, the Time of Sale Prospectus, the Prospectus and or any amendments amendment or supplements theretosupplement thereto (such information, the “Selling Shareholder Information”.
(ig) None No part of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea, Sudan and Syria).
(ii) The Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that offering will result in a violation of Sanctions be used by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past five years, the Selling Shareholder has not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(a) None of the Selling Shareholder or its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of (i) any laws, rules and regulations of any jurisdiction applicable anti-corruption laws; (b) to the Selling Shareholder and its subsidiaries have conducted their businesses in compliance with affiliated companies from time to time concerning or relating to bribery or corruption, or (ii) applicable anti-corruption laws and have instituted and maintained and will continue Sanctions. For purposes of this Section 2(g), “Sanctions” means economic or financial sanctions or trade embargoes imposed, administered or enforced from time to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with time by (A) the representations and warranties contained herein and U.S. government, including those administered by the Office of Foreign Assets Control of the United States Department of the Treasury or the U.S. Department of State or (cB) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectlyUnited Nations Security Council, the proceeds European Union, France or Her Majesty’s Treasury of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption lawsUnited Kingdom.
(v) The operations of the Selling Shareholder and its subsidiaries are and have been conducted at all times in material compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Selling Shareholder, threatened.
Appears in 1 contract
Samples: Underwriting Agreement (Westinghouse Air Brake Technologies Corp)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the such Selling Shareholder.
(b) The execution and delivery by the such Selling Shareholder of, and the performance by the such Selling Shareholder of its obligations under, this Agreement, the Custody Agreement signed by such Selling Shareholder and the Company, as Custodian, relating to the deposit of the Shares to be sold by such Selling Shareholder (the “Custody Agreement”) and the Power of Attorney appointing a certain individual as such Selling Shareholder’s attorney-in-fact to the extent set forth therein, relating to the transactions contemplated hereby and by the Registration Statement (the “Power of Attorney”) will not contravene any provision of applicable law, or the certificate limited partnership agreement of incorporation or by-laws of the such Selling Shareholder (if the Selling Shareholder is a corporation)Shareholder, or any agreement or other instrument binding upon the such Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the such Selling Shareholder except, in each case, where any such contravention would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereunderShareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the such Selling Shareholder of its obligations under this Agreement or the Custody Agreement or Power of the Attorney of such Selling Shareholder, except such as have been obtained and such as may be required by the securities or Blue Sky laws of the various states or the securities laws of any jurisdiction outside the United States of America in connection with the offer and sale of the Shares, except where the failure to obtain such consent, approval, authorization or order of, or qualification with, any governmental body or agency would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereunder.
(c) The Such Selling Shareholder has, and on the Closing Date will have, 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 to be sold by the such Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement, the Custody Agreement and the Power of Attorney and to sell, transfer and deliver the Shares to be sold by the such Selling Shareholder or a security entitlement in respect of such Shares.
(d) [Reserved]The Custody Agreement and Power of Attorney have been duly authorized, executed and delivered by such Selling Shareholder and are valid and binding agreements of such Selling Shareholder, except as limited by (i) bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws relating to or affecting creditors’ rights generally, (ii) by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and (iii) by principles of public policy.
(e) Upon payment for the Shares to be sold by the such Selling Shareholder pursuant to this Agreement, delivery of the certificates representing 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 New York Uniform Commercial Code (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, the 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 certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and will have established a “securities account” for the Underwriters within the meaning of Section 8-501(a) 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.
(f) The Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements relating to such Selling Shareholder therein not misleading, and (ii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (iii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements relating to such Selling Shareholder therein, in the light of the circumstances under which they were made, provided not misleading, except that such the representations and warranties set forth in this subsection (gparagraph 2(f) do not apply only to statements or omissions made in reliance the Registration Statement or the Prospectus based upon and in conformity with Shareholder Information (defined below) information relating to any Underwriter furnished to the Selling Shareholder furnished Company in writing by or on behalf of the Selling Shareholder such Underwriter through you expressly for use in the Registration Statement, the Prospectus, the Time of Sale Prospectus and any amendments or supplements theretotherein.
(i) None of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea, Sudan and Syria).
(ii) The Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past five years, the Selling Shareholder has not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(a) None of the Selling Shareholder or its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (b) the Selling Shareholder and its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(v) The operations of the Selling Shareholder and its subsidiaries are and have been conducted at all times in material compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Selling Shareholder, threatened.
Appears in 1 contract
Samples: Underwriting Agreement (Motive Inc)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriters you that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The Power of Attorney and the Custody Agreement relating to outstanding shares in the form heretofore furnished to the Representatives (the “Power of Attorney” and “Custody Agreement”, respectively), has been duly authorized, executed and delivered by such Selling Shareholder and is the valid and binding agreement of the Selling Shareholder.
(c) The execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement Agreement, the Power of Attorney and, if applicable, the Custody Agreement, will not contravene any provision of applicable law, or the certificate of incorporation or by-laws of the Selling Shareholder (if the Selling Shareholder is a corporation), or any agreement or other instrument binding upon the Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder except, in each case, where any such contravention would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereunderShareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the such Selling Shareholder of its obligations under this Agreement Agreement, the Power of Attorney or the Custody Agreement, if applicable, or the Selling Shareholder, except such as have already been obtained or as may be required under the Act and by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares, except where the failure to obtain such consent, approval, authorization or order of, or qualification with, any governmental body or agency would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereunderStock.
(cd) The Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code as adopted in the State of Ohio (“UCC”) in respect of, of the Shares Stock to be sold by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by applicable law, to enter into this Agreement Agreement, and to sell, transfer and deliver the Shares Stock to be sold by the Selling Shareholder or a security entitlement in respect of such Shares.
(d) [Reserved]Stock.
(e) Upon payment for the Shares to be sold The information provided by the 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 writing for inclusion in the name “Selling Shareholder” section of Cede or such other nominee the Preliminary Prospectus and the crediting of Final Prospectus is true and correct; it being understood and agreed that the only such Shares on information furnished to the books of DTC to securities accounts Company by such Selling Shareholder consists 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 New York Uniform Commercial Code (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, the 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 certificate of incorporation, bylaws and applicable law, (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.
(f) The Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any 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, (ii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (iii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, provided that such representations and warranties set forth in this subsection (g) apply only to statements or omissions made in reliance upon and in conformity with Shareholder Information (defined below) relating to the Selling Shareholder furnished in writing by or on behalf of the Selling Shareholder expressly for use in the Registration Statement, the Prospectus, the Time of Sale Prospectus and any amendments or supplements thereto.
(i) None of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof, is a Person that is, or is the number of shares of Stock beneficially owned or controlled by one or more Persons that are:
(A) the subject of any Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea, Sudan and Syria).
(ii) The Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions be offered by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past five years, the Selling Shareholder has not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(a) None of the Selling Shareholder or its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (b) the Selling Shareholder and its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(v) The operations of the Selling Shareholder and its subsidiaries are and have been conducted at all times in material compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries other information with respect to the Anti-Money Laundering Laws is pending or, to Selling Shareholder (excluding any percentage) which appears under the knowledge of the caption “Selling Shareholder” in the Preliminary Prospectus and the Final Prospectus (such information so furnished in writing being hereinafter called, threatenedcollectively, the “Selling Shareholder Information”).
Appears in 1 contract
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and represents, warrants to and agrees with each of the Representatives and the Underwriters that:
2.1 The Selling Shareholder now has, and at the time of delivery thereof hereunder will have, (ai) This Agreement has been duly authorized, executed good and delivered by or on behalf of marketable title to the Selling Shareholder.
(b) The execution and delivery Firm Shares to be sold by the Selling Shareholder ofhereunder, free and clear of all liens, encumbrances and claims whatsoever, and (ii) full legal right and power, and all authorizations and approvals required by law, to sell, transfer and deliver such Firm Shares to the performance by Underwriters hereunder. Upon the delivery of and payment for such Firm Shares hereunder, the Selling Shareholder will deliver good and marketable title thereto, free and clear of its obligations underall liens, encumbrances and claims whatsoever.
2.2 The performance of this Agreement and the consummation of the transactions contemplated hereby will not contravene result in the creation or imposition of any provision lien, charge or encumbrance upon any of applicable law, or the certificate of incorporation or by-laws assets of the Selling Shareholder (if pursuant to the terms or provisions of, or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the acceleration of any obligation of the Selling Shareholder under, any contract or other agreement to which the Selling Shareholder is a corporation), party or any agreement or other instrument binding upon by which the Selling Shareholder or any of its properties are bound or affected, or under any ruling, decree, judgment, order order, statute, rule or decree regulation of any court or governmental body, agency or court body having jurisdiction over the Selling Shareholder except, in each case, where any such contravention would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to perform or its obligations hereunder, and no properties.
2.3 No consent, approval, authorization or order of, or qualification any filing or declaration with, any court or governmental agency or body or agency is required for the performance consummation by the Selling Shareholder of the transactions on its obligations under this Agreement of the Selling Shareholderpart contemplated herein, except such as have been obtained under the Act or the Rules and Regulations and such as may be required by the under state securities or Blue Sky "blue sky" laws or the by-laws and rules of the various states NASD in connection with the offer purchase and sale distribution by the Underwriters of the Shares, except where the failure to obtain such consent, approval, authorization or order of, or qualification with, any governmental body or agency would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereunder.
(c) The Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Firm Shares to be sold by the Selling Shareholder.
2.4 All information with respect to the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances contained in the Registration Statement and the legal right and powerProspectus (or if the Prospectus is not in existence, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares most recent Preliminary Prospectus) furnished or to be sold furnished in writing by the Selling Shareholder or a security entitlement in respect complied and will comply with all applicable provisions of such Shares.
(d) [Reserved].
(e) Upon payment for the Shares Act and the Rules and Regulations, contains and will contain all statements required to be sold by the 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 New York Uniform Commercial Code (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, the 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 stated therein in accordance with its certificate of incorporationthe Act and the Rules and Regulations, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC does not and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(f) The Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, 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 in order to make the statements therein not misleading, (ii) .
2.5 This Agreement and the Time of Sale Prospectus does not, Lock-Up Agreements and at custodian agreements between the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers Company and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (iii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, provided that such representations and warranties set forth in this subsection (g) apply only to statements or omissions made in reliance upon and in conformity with Shareholder Information (defined below) relating to the Selling Shareholder furnished in writing have been duly executed by or on behalf of the Selling Shareholder expressly for use in the Registration Statement, the Prospectus, the Time of Sale Prospectus and any amendments or supplements thereto.
(i) None of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea, Sudan and Syria).
(ii) The Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past five years, the Selling Shareholder has not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(a) None of the Selling Shareholder or its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (b) the Selling Shareholder and its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws are valid, binding and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein and (c) neither enforceable against the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption lawsaccordance with their terms.
(v) The operations of the Selling Shareholder and its subsidiaries are and have been conducted at all times in material compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Selling Shareholder, threatened.
Appears in 1 contract
Samples: Underwriting Agreement (Consep Inc)
Representations and Warranties of the Selling Shareholder. The Each Selling Shareholder represents and warrants to and agrees with each of the Underwriters Underwriter that:
(a) Such Selling Shareholder now has, and on any Option Closing Date will have, valid and marketable title to the Shares to be sold by such Selling Shareholder, free and clear of any lien, claim, security interest or other encumbrance, including, without limitation, any restriction on transfer.
(b) Such Selling Shareholder now has, and on any Option Closing Date will have, full legal right, power and authorization, and any approval required by law, to sell, assign transfer and deliver such Shares in the manner provided in this Agreement, and upon delivery of and payment for such Shares hereunder, the several Underwriters will acquire valid and marketable title to such Shares free and clear of any lien, claim, security interest, or other encumbrance.
(c) This Agreement has and the Custody Agreement have been duly authorized, executed and delivered by or on behalf of such Selling Shareholder and are the valid and binding agreements of such Selling ShareholderShareholder enforceable against such Selling Shareholder in accordance with their terms, except to the extent enforceability may be limited by laws relating to creditors' rights generally or by general equitable principles, and except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws.
(bd) The Neither the execution and delivery of this Agreement or the Custody Agreement by or on behalf of such Selling Shareholder, nor the consummation of the transactions herein or therein contemplated by or on behalf of such Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement will not contravene requires any provision of applicable law, or the certificate of incorporation or by-laws of the Selling Shareholder (if the Selling Shareholder is a corporation), or any agreement or other instrument binding upon the Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder except, in each case, where any such contravention would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereunder, and no consent, approval, authorization or order of, or qualification filing or registration with, any court, regulatory body, administrative agency or other governmental body body, agency or agency is required for the performance by the Selling Shareholder of its obligations under this Agreement of the Selling Shareholder, official (except such as may be required by under the Act and the Exchange Act or such as may be required under state securities or Blue Sky laws of governing the various states in connection with the offer purchase and sale distribution of the Shares), except where the failure to obtain such consent, approval, authorization or order conflicts or will conflict with or constitutes or will constitute a breach of, or qualification withdefault under, or violates or will violate, any governmental body agreement, indenture or agency would not reasonably be expected other instrument to have a material adverse effect on the ability of the which such Selling Shareholder to perform its obligations hereunder.
(c) The is a party or by which such Selling Shareholder has, and on the Closing Date will have, valid title tois or may be bound, or a valid “security entitlement” within the meaning to which any of Section 8-501 of the New York Uniform Commercial Code in respect ofsuch Selling Shareholder's property or assets is subject, the Shares to be sold by the Selling Shareholder free and clear of all security interestsor any statute, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, rule, regulation, ruling, judgment, injunction, order or decree applicable to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the such Selling Shareholder or a security entitlement in respect to any property or assets of such Shares.
(d) [Reserved]Selling Shareholder.
(e) Upon payment for the Shares to be sold by the 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 The Registration Statement 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 New York Uniform Commercial Code (the “UCC”)) Prospectus, insofar as they relate to such Shares)Selling Shareholder, (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 do not 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, the 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 certificate of incorporation, bylaws and applicable law, (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.
(f) The Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any an untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading, .
(iif) Such Selling Shareholder does not have any knowledge or any reason to believe that the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when Registration Statement or the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any amendment or supplement thereto) contains any untrue statement of a material fact or omit omits to state a any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, therein not misleading and misleading.
(iiig) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, provided that such The representations and warranties set forth in this subsection (g) apply only to statements or omissions made in reliance upon and in conformity with Shareholder Information (defined below) relating to the of such Selling Shareholder furnished in writing by or on behalf of the Selling Shareholder expressly for use in the Registration StatementCustody Agreement are, and on the Prospectus, the Time of Sale Prospectus Closing Date and any amendments or supplements theretoOption Closing Date will be, true and correct.
(ih) None of the Such Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea, Sudan and Syria).
(ii) The Selling Shareholder will nothas not taken, directly or indirectly, use the proceeds any action designed to or that might reasonably be expected to cause or result in stabilization or manipulation of the offeringprice of the Common Stock to facilitate the sale or resale of the Shares, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at except for the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating lock-up arrangements described in the offering, whether as underwriter, advisor, investor or otherwise)Prospectus.
(iii) For the past five years, the Selling Shareholder has not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(a) None of the Selling Shareholder or its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (b) the Selling Shareholder and its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(v) The operations of the Selling Shareholder and its subsidiaries are and have been conducted at all times in material compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Selling Shareholder, threatened.
Appears in 1 contract
Samples: Underwriting Agreement (International Speedway Corp)
Representations and Warranties of the Selling Shareholder. The Each of Xxxxxxx X. Xxxxx (“Motto”) and the Selling Shareholder Shareholder, jointly and severally, represents and warrants to to, and agrees with each of with, the Underwriters Underwriter that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder and is a valid and binding agreement of the Selling Shareholder, enforceable in accordance with its terms, except as rights to indemnification hereunder may be limited by applicable law and except as the enforcement hereof 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.
(b) The Selling Shareholder has, and on the Closing Date will have, good and valid title to the Selling Shareholder Shares pursuant to this Agreement on such date and the legal right and power to sell, transfer and deliver all of the Firm Securities that may be sold by such Selling Shareholder pursuant to this Agreement and to comply with its other obligations hereunder and thereunder.
(c) Upon payment therefore pursuant hereto, delivery of the Selling Shareholder Shares pursuant to this Agreement will pass good and valid title to such Selling Shareholder Shares, free and clear of any security interest, mortgage, pledge, lien, encumbrance or other adverse claim.
(d) The execution and delivery by the Selling Shareholder of, and the performance by the such Selling Shareholder of its obligations under, this Agreement will not contravene any provision of applicable lawor conflict with, result in a breach of, or constitute a default under, or require the certificate consent of incorporation any other party to, the charter or by-laws of the Selling Shareholder (if the Selling Shareholder is a corporation), or any agreement or other instrument binding upon organizational documents of the Selling Shareholder or any other agreement or instrument to which a Selling Shareholder is a party or by which it is bound or under which it is entitled to any right or benefit, any provision of applicable law or any judgment, order order, decree or decree regulation applicable to such Selling Shareholder of any governmental court, regulatory body, agency administrative agency, governmental body or court arbitrator having jurisdiction over the such Selling Shareholder except, in each case, where any such contravention would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereunder, and no Shareholder. No consent, approval, authorization or other order of, or qualification registration or filing with, any court or other governmental body authority or agency agency, is required of or by a Selling Shareholder for the performance consummation by such Selling Shareholder of the transactions contemplated in this Agreement, except such as have been obtained or made and are in full force and effect under the Securities Act, applicable state securities or blue sky laws.
(e) The Selling Shareholder (i) does not, other than with respect to the Motto Agreement, 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 contemplated by this Agreement, except for the Selling Shareholder Shares, (ii) does not have any preemptive right, co-sale right or right of first refusal or other similar right to purchase any of the Company Shares to be sold to the Underwriter pursuant to this Agreement, and (iii) does not own 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.
(f) Except for such consents, approvals and waivers which have been obtained by the Selling Shareholder on or prior to the date of its obligations this Agreement, no consent, approval or waiver is required under this Agreement of the any instrument or agreement to which a Selling ShareholderShareholder is a party or by which it is bound or under which it is entitled to any right or benefit, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and offering, sale or purchase by the Underwriter of any of the Shares, except where Firm Securities that may be sold by a Selling Shareholder under this Agreement or the failure to obtain such consent, approval, authorization consummation by a Selling Shareholder of any of the other transactions contemplated hereby.
(g) All information furnished by or order of, or qualification with, any governmental body or agency would not reasonably be expected to have a material adverse effect on the ability behalf of the Selling Shareholder to perform its obligations hereunder.
(c) The Selling Shareholder hasfor use in the Registration Statement and Prospectus is, and on the Closing Date will havebe, valid title totrue, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares to be sold by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and powercorrect, and complete in all authorization material respects, and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such Shares.
(d) [Reserved].
(e) Upon payment for the Shares to be sold by the 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 New York Uniform Commercial Code (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, the 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 certificate of incorporation, bylaws and applicable law, (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.
(f) The Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any 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, (ii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at on the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a any material fact necessary to make such information not misleading. The Selling Shareholder confirms as accurate the statements therein, number of Firm Securities set forth opposite such Selling Shareholder’s name in the light Prospectus under the caption “Selling Shareholder” (both prior to and after giving effect to the sale of the circumstances under which they were made, not misleading and Firm Securities).
(iiih) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit Other than excepted activity pursuant to state a material fact necessary to make the statements therein, in the light Regulation M of the circumstances under which they were madeExchange Act, provided that such representations and warranties set forth in this subsection (g) apply only to statements or omissions made in reliance upon and in conformity with Shareholder Information (defined below) relating to the Selling Shareholder furnished has not taken any action designed to or that might be reasonably expected to cause or result in writing stabilization or manipulation of the price of shares of Common Stock or any other reference security, whether to facilitate the sale or resale of the Firm Securities or otherwise, or has taken any action that would directly or indirectly violate any provision of Regulation M.
(i) There are no transfer taxes or other similar fees or charges under Federal law or the laws of any state, or any political subdivision thereof, required to be paid by or on behalf of the Selling Shareholder expressly for use in connection with the Registration Statement, execution and delivery of this Agreement or the Prospectus, sale by either Selling Shareholder of the Time of Sale Prospectus and any amendments or supplements theretoFirm Securities.
(i) None of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea, Sudan and Syria).
(iij) The Selling Shareholder has not distributed and will notnot distribute, directly or indirectly, use prior to the proceeds later of (i) the completion of the offeringUnderwriter’s distribution of the Firm Securities and (ii) the expiration of 25 days after the date of the Prospectus, any offering material in connection with the offering and sale of the Firm Securities other than the Prospectus or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise)Registration Statement.
(iiik) For the past five years, the The Selling Shareholder has not knowingly engaged inacknowledges that the Underwriter and, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time for purposes of the dealing or transaction is or was the subject of Sanctions.
(a) None of the Selling Shareholder or its subsidiariesopinions to be delivered pursuant to Section 9 hereof, or, counsel to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (b) the Selling Shareholder and its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws counsel to the Underwriter, will rely upon the accuracy and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with truthfulness of the foregoing representations and warranties contained herein and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise hereby consents to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption lawssuch reliance.
(v) The operations of the Selling Shareholder and its subsidiaries are and have been conducted at all times in material compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Selling Shareholder, threatened.
Appears in 1 contract
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The execution and delivery by sale of the Selling Shareholder ofShares, and the performance by consummation of the Selling Shareholder of its obligations under, this Agreement transactions herein contemplated will not contravene conflict with or result in a breach or violation of any provision of applicable lawthe terms or provisions of, or the certificate constitute a default under (i) any indenture, mortgage, deed of incorporation or by-laws of the Selling Shareholder (if the Selling Shareholder is a corporation)trust, or any loan agreement or other agreement or instrument binding upon to which the Selling Shareholder or any judgmentof its subsidiaries is a party or by which the Selling Shareholder or any of its subsidiaries is bound or to which any of the property or assets of the Selling Shareholder or any of its subsidiaries is subject, order except in the case of this clause (i) for any such conflicts, breaches, violations or decree defaults as would not, individually or in the aggregate, result in a Material Adverse Effect, (ii) the provisions of the articles of incorporation, by-laws or other constituent documents (or similar documents) of the Selling Shareholder or (iii) any statute or any order, rule or regulation of any court or governmental body, agency or court body having jurisdiction over the Selling Shareholder exceptor any of its subsidiaries or any of their properties, except in each case, where the case of this clause (iii) for any such contravention conflicts, breaches, violations or defaults as would not, individually or in the aggregate, result in a Material Adverse Effect; 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 or the consummation by the Selling Shareholder of the transactions contemplated by this Agreement except (x) for 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 or (y) as have been obtained and are in full force and effect or will have been obtained prior to the Closing Date or such as would not reasonably be expected to have a material adverse effect on materially affect the ability of the Selling Shareholder to perform its obligations hereunder, and no consent, approval, authorization consummate the transactions contemplated hereby prior to the Closing Date or order of, or qualification with, any governmental body or agency is required for (z) the performance by the Selling Shareholder of its obligations under this Agreement filing of the Selling Shareholder, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares, except where the failure to obtain such consent, approval, authorization or order of, or qualification with, any governmental body or agency would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereunderCanadian Supplemented Prospectus.
(c) The Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares to be sold by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such Shares.
(d) [Reserved].
(e) Upon payment for the Shares to be sold by the 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 New York Uniform Commercial Code (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, the 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 certificate of incorporation, bylaws and applicable law, (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.
(fe) The Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Registration Statement, the Time of Sale Prospectus or the Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any 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, (ii) the Canadian Final Prospectus when it was filed did not contain and, as amended, if applicable, will as of its date and when filed not contain any 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, in the light of the circumstances under which they were made, not misleading and when filed contained, and, as amended, if applicable, will when filed contain, in each case, other than the PREP Information, full, true and plain disclosure of all material facts relating to the Company and the Shares as required by Canadian Securities Laws, (iii) the Registration Statement and the U.S. Prospectus comply and, as amended or supplemented, if applicable, will comply in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder, (iv) the Canadian Final Prospectus complies and, as amended or supplemented (including for greater certainty by the Canadian Supplemented Prospectus), will comply in all material respects with Canadian Securities Laws, (v) the Time of Sale U.S. Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the U.S. Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale U.S. Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and misleading, (iiivi) the Prospectus does not contain and, as amended or supplementedeach broadly available road show, if applicableany, will when considered together with the Time of Sale U.S. Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, provided not misleading and (vii) as of its date, the Prospectus does not contain and, as amended or supplemented, if applicable, as of the date of such amendment or supplement, and as of the Closing Date will not contain any 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, in the light of the circumstances under which they were made, not misleading and the Canadian Supplemented Prospectus will contain full, true and plain disclosure of all material facts relating to the Company and the Shares as required by Canadian Securities Laws, except that such the representations and warranties set forth in this subsection (g) paragraph apply only to statements or omissions made in reliance the Registration Statement, the Time of Sale Prospectus or the Prospectus based upon and in conformity with Shareholder Information (defined below) information relating to the Selling Shareholder furnished to the Company in writing by or on behalf of the Selling Shareholder expressly for use in therein, it being understood and agreed that the Registration Statement, only such information furnished by the Prospectus, Selling Shareholder consists of the Time of Sale Prospectus and any amendments or supplements theretoSelling Shareholder Information (defined below).
(i) None of the Selling Shareholder or any of its subsidiaries, subsidiaries or affiliates or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea, Sudan and Syria).
(ii) The Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner employee or other Person:
(A) to fund person associated with or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past five years, the Selling Shareholder has not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(a) None acting on behalf of the Selling Shareholder or any of its subsidiariessubsidiaries or affiliates has (A) used any corporate funds for any unlawful contribution, orgift, entertainment or other unlawful expense relating to the knowledge of the Selling Shareholder, political activity; (B) made any director, officer, employee, agent, representative, direct or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the indirect unlawful payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence foreign or domestic government official action, or to any person employee from corporate funds; or (C) violated or is in violation of any provision of the U.S. Foreign Corrupt Practices Act of 1977 or any other applicable anti-corruption laws; (b) the Selling Shareholder and its subsidiaries have conducted their businesses in compliance with applicable bribery/anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein law; and (cii) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(vh) The operations of the Selling Shareholder and its subsidiaries are and have been conducted at all times in compliance in all material compliance with all respects with, to the knowledge of the Selling Shareholder, the applicable Anti-Money Laundering Laws, Laws and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Selling Shareholder, threatened.
(i) No stamp, documentary, issuance, registration, transfer, or other taxes or duties are payable by or on behalf of the Underwriters, the Company or any of its subsidiaries in Canada or to any taxing authority thereof or therein in connection with (i) the execution, delivery or consummation of this Agreement, (ii) the sale and delivery of the Shares to the Underwriters in the manner contemplated herein, or (iii) the resale and delivery of the Shares by the Underwriters in the manner contemplated herein other than any taxes or duties that would not have been imposed but for (i) any present or former connection between the Underwriter and the jurisdiction imposing the tax, duty or charge (other than a connection arising solely as a result of entering into this Agreement or the consummation of the transactions contemplated hereunder), or (ii) a failure of an Underwriter to timely provide upon request any certification, documentation or form concerning the Underwriter’s nationality, residence, identity or connection with the applicable taxing jurisdiction to the extent necessary in order to eliminate or reduce such withholding or deduction; provided that no representation is made with respect to any taxes or duties payable by the Underwriters in connection with any goods or services contracted by them.
(j) The Selling Shareholder has the power to submit, and pursuant to Section 20 has, to the extent permitted by law, legally, validly, effectively and irrevocably submitted, to the jurisdiction of the Specified Courts (as defined in Section 20), and has the power to designate, appoint and empower, and pursuant to Section 20, has legally, validly and effectively designated, appointed and empowered an agent for service of process in any suit or proceeding based on or arising under this Agreement in any of the Specified Courts.
(k) None of the Selling Shareholder, any of its subsidiaries or, to the knowledge of the Selling Shareholder, any director, officer or affiliate of the Selling Shareholder or any of its subsidiaries or any agent or employee of the Selling Shareholder that will act in any capacity in connection with this offering is: currently the subject of any Sanctions. The Selling Shareholder will not directly or indirectly use the proceeds of the offering of the Securities hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of or with any person, or in any country or territory, that, at the time of such financing, is the subject of Sanctions.
(l) The Selling Shareholder has implemented and maintains in effect policies and procedures designed to ensure compliance by the Selling Shareholder, its subsidiaries and their respective directors, officers, employees and agents with all applicable anti-corruption laws, including the U.S. Foreign Corrupt Practices Act of 1977.
(m) The Selling Shareholder is registered for goods and services tax/harmonized sales tax under Subdivision D of Division V of Part IX of the Excise Tax Act (Canada).
Appears in 1 contract
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement Agreement, will not (i) contravene (a) any provision of the articles of association of the Selling Shareholder, (b) any provision of applicable law, or the certificate of incorporation or by-laws of the Selling Shareholder (if the Selling Shareholder is a corporation), or c) any agreement or other instrument binding upon the Selling Shareholder Shareholder, or (d) any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder exceptShareholder, except in each casethe case of clauses (i)(b) through (i)(d) above, where for any such contravention that would not not, singly or in the aggregate, affect the validity of the Shares to be sold by the Selling Shareholder or reasonably be expected to have a material adverse effect on materially impair the power and ability of the Selling Shareholder to perform its obligations hereunderconsummate the transactions contemplated by this Agreement, and no (ii) require any consent, approval, authorization or order of, or qualification with, any governmental body body, agency or agency court is required for the performance by the Selling Shareholder of its obligations under this Agreement Agreement, except for the registration of the Selling ShareholderShares under the Securities Act and such consents, except approvals, authorizations, orders or qualifications as have been obtained or such as may be required by the FINRA and applicable state securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares, except where the failure to obtain such consent, approval, authorization or order of, or qualification with, any governmental body or agency would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereunder.
(c) The Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares to be sold by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such Shares.
(d) [Reserved].
(e) Upon payment for the Shares to be sold by the 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 New York Uniform Commercial Code (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, the 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 certificate of incorporation, bylaws and applicable law, (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.
(e) The Selling Shareholder has delivered to the Representatives an executed lock-up agreement in substantially the form attached hereto as Exhibit A (the “Lock-up Agreement”).
(f) The Selling Shareholder is familiar with the Registration Statement, the Time of Sale Prospectus and the Prospectus and has no knowledge of any material fact, condition or information not disclosed in the Registration Statement, the Time of Sale Prospectus or the Prospectus that has had, or may have, a material adverse effect on the Company and its subsidiaries, taken as a whole. The Selling Shareholder is not prompted by any material information concerning the Company or its subsidiaries which is not set forth in the Registration Statement, the Time of Sale Prospectus or the Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain contain, as of the date of such amendment or supplement, any 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, (ii) the Registration Statement and the Prospectus comply and, as amended or supplemented, if applicable, will, as of the date of such amendment or supplement, comply in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder, (iii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and misleading, (iiiiv) the Prospectus does not contain and, as amended or supplementedeach broadly available road show, if applicableany, will when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, provided not misleading and (v) as of its date, the Prospectus does not contain and, as amended or supplemented, if applicable, as of the date of such amendment or supplement and as of the Closing Date, will 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, except that such the representations and warranties set forth in this subsection (g) paragraph do not apply only to statements or omissions made in reliance upon and in conformity with Shareholder Information (defined below) relating to the Selling Shareholder furnished in writing by or on behalf of the Selling Shareholder expressly for use in the Registration Statement, the Prospectus, the Time of Sale Prospectus and or the Prospectus based upon information relating to any amendments or supplements theretoUnderwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use therein.
(i) None of the Selling Shareholder or any of its subsidiaries, any director or officer thereof, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or controlled affiliate thereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Crimeathe so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic or any other Covered Region of Ukraine identified pursuant to Executive Order 14065, the Crimea region of Ukraine, Cuba, Iran, North Korea, Sudan Korea and Syria).
(ii) The Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) The Selling Shareholder and each of its subsidiaries and controlled affiliates (a) have conducted their businesses at all times in compliance with Sanctions, (b) have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein, and (c) no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries with respect to Sanctions is pending or, to the best knowledge of the Selling Shareholder, threatened.
(iv) For the past five ten years, the Selling Shareholder has not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(a) None of the Selling Shareholder or any of its subsidiariessubsidiaries or controlled affiliates, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or controlled affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (b) the Selling Shareholder and each of its subsidiaries and, to the Selling Shareholder’s knowledge, each of its controlled affiliates, have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein and herein; (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption lawslaws and (d) no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries with respect to any applicable anti-corruption laws is pending or, to the best knowledge of the Selling Shareholder, threatened.
(va) The operations of the Selling Shareholder and each of its subsidiaries and controlled affiliates are and have been conducted at all times in material compliance with all applicable Anti-Money Laundering Laws, (b) the Selling Shareholder and each of its subsidiaries and controlled affiliates have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein; (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in violation of the Anti-Money Laundering Laws; and (d) no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the best knowledge of the Selling Shareholder, threatened.
(i) The Selling Shareholder represents and warrants that it is not (i) an employee benefit plan subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), (ii) a plan or account subject to Section 4975 of the Internal Revenue Code of 1986, as amended or (iii) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R. 2510.3-101, or otherwise.
(j) No stamp, documentary, issuance, registration, transfer, withholding, or other similar taxes or duties are payable by or on behalf of the Underwriters, the Company or any of its subsidiaries in the Netherlands or the United States or to any taxing authority thereof or therein in connection with (i) the execution, delivery or consummation of this Agreement, (ii) the sale and delivery of the Shares by the Selling Shareholder to the Underwriters or purchasers procured by the Underwriters, or (iii) the resale and delivery of the Shares by the Underwriters in the manner contemplated herein.
(k) This Agreement is in proper form under the laws of the Netherlands for the enforcement thereof against the Selling Shareholder, and to ensure the legality, validity, enforceability or admissibility into evidence in the Netherlands of this Agreement.
(l) The courts of the Netherlands would recognize as a valid judgment any final monetary judgment obtained against the Selling Shareholder in the courts of the State of New York.
(m) Neither the Selling Shareholder nor any of its subsidiaries nor any of its or their properties or assets has any immunity from the jurisdiction of any court or from any legal process (whether through service or notice, attachment prior to judgment, attachment in aid of execution or otherwise) under the laws of the Netherlands. The irrevocable and unconditional waiver and agreement of the Selling Shareholder contained in Section 19 not to plead or claim any such immunity in any legal action, suit or proceeding based on this Agreement is valid and binding under the laws of the Netherlands.
(n) The choice of law of the State of New York as the governing law of this Agreement is a valid choice of law under the laws of the Netherlands and will be honored by the courts of the Netherlands. The Selling Shareholder has the power to submit, and pursuant to Section 19 has, to the extent permitted by law, legally, validly, effectively and irrevocably submitted, to the jurisdiction of the New York Courts (as defined in Section 19), and has the power to designate, appoint and empower, and pursuant to Section 19, has legally, validly and effectively designated, appointed and empowered an agent for service of process in any suit or proceeding based on or arising under this Agreement in any of the New York Courts.
Appears in 1 contract
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement will not contravene any provision of applicable law, or the certificate of incorporation or by-laws of the Selling Shareholder (if the Selling Shareholder is a corporation)Shareholder, or any agreement or other instrument binding upon the Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder except, in each case, where any such contravention would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereunderShareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Selling Shareholder of its obligations under this Agreement of the Selling ShareholderAgreement, except such as may have been obtained and such as may be required by the securities or Blue Sky laws of the various states or foreign jurisdictions in connection with the offer and sale of the Shares, except where the failure to obtain such consent, approval, authorization or order of, or qualification with, any governmental body or agency would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereunder.
(c) The Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, to the Shares to be sold by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such SharesShareholder.
(d) [Reserved].
(e) Upon payment for Delivery of the Shares to be sold by the Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by Agreement will pass title to 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 free 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 clear of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”)) to such Shares)security interests, (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCCclaims, (B) under Section 8-501 of the UCCliens, the Underwriters will acquire a valid security entitlement in respect of such Shares equities 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, the 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 certificate of incorporation, bylaws and applicable law, (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 UCCother encumbrances.
(f) The Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any 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, (ii) the Time of Sale Prospectus does not, Registration Statement and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (iii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, provided that such representations and warranties set forth in this subsection (g) apply only to statements or omissions made in reliance upon and in conformity with Shareholder Information (defined below) relating to the Selling Shareholder furnished in writing by or on behalf of the Selling Shareholder expressly for use in the Registration Statement, the Prospectus, the Time of Sale Prospectus and any amendments or supplements thereto.
(i) None of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea, Sudan and Syria).
(ii) The Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past five years, the Selling Shareholder has not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(a) None of the Selling Shareholder or its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (b) the Selling Shareholder and its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(v) The operations of the Selling Shareholder and its subsidiaries are and have been conducted at all times in material compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Selling Shareholder, threatened.
Appears in 1 contract
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations underunder this Agreement, this Agreement will not contravene any provision of applicable law, or the certificate of incorporation formation or by-laws of the Selling Shareholder (if the Selling Shareholder is a corporation)Shareholder, or any agreement or other instrument binding upon the Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder except, in each case, where any such contravention would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereunderShareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Selling Shareholder of its obligations under this Agreement of the Selling ShareholderAgreement, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares, except where the failure to obtain such consent, approval, authorization or order of, or qualification with, any governmental body or agency would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereunder.
(c) The Selling Shareholder has, and on the Closing Date (as defined in Section 5 hereof) and on each Option Closing Date (as defined in Section 3 hereof) will have, 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 to be sold by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such Shares.
(d) [Reserved].
(e) Upon payment for the Shares to be sold by the 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 New York Uniform Commercial Code (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, the 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 certificate of incorporation, bylaws and applicable law, (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.
(fe) The Selling Shareholder has no reason to believe (without independent investigation) that the representations and warranties of the Company contained in Section 1 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 Prospectus that has had, or may have, a Material Adverse Effect. The Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries Subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any 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 (ii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (iii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, provided not misleading, except that such the representations and warranties set forth in this subsection (gparagraph 2(f) apply only to statements or omissions made in reliance upon and or incorporated by reference in conformity with Shareholder Information (defined below) relating the Registration Statement or the Prospectus furnished to the Selling Shareholder furnished Company in writing by or on behalf of the Selling Shareholder expressly for use in the Registration Statement, the Prospectus, the Time of Sale Prospectus and any amendments or supplements theretotherein.
(ig) None of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea, Sudan and Syria).
(ii) The Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past five years, the Selling Shareholder has not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(a) None of the Selling Shareholder or its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (b) the Selling Shareholder and its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(v) The operations of the Selling Shareholder and its subsidiaries There are and have been conducted at all times in material compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court legal or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is proceedings pending or, to the knowledge of the Selling Shareholder, threatenedthreatened to which the Selling Shareholder is a party or to which any of the properties of the Selling Shareholder is subject other than proceedings that would not have a material adverse effect on the power or ability of the Selling Shareholder to perform its obligations under this Agreement or to consummate the transactions contemplated by the Prospectus.
(h) The Selling Shareholder has not taken, and will not take, directly or indirectly, any action designed to, or which might reasonably be expected to, cause or result in stabilization nor manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares pursuant to the distribution contemplated by this Agreement, and other than as permitted by the Securities Act, the Selling Shareholder has not distributed and will not distribute any prospectus or other offering material in connection with the offering and sale of the Shares.
Appears in 1 contract
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations underunder this Agreement, this Agreement will not contravene any provision of applicable law, or the certificate of incorporation formation or by-laws limited liability company agreement of the Selling Shareholder (if the Selling Shareholder is a corporation)Shareholder, or any material agreement or other instrument binding upon the Selling Shareholder or any material judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder except, in each case, where any such contravention would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereunderShareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Selling Shareholder of its obligations under this Agreement of the Selling ShareholderAgreement, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares, except where the failure to obtain such consent, approval, authorization or order of, or qualification with, any governmental body or agency would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereunder.
(c) The Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares to be sold by the such Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement Agreement, and to sell, transfer and deliver the Shares to be sold by the such Selling Shareholder or a security entitlement in respect of such Shares.
(d) [Reserved].
(e) Upon payment for the Shares to be sold by the 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 New York Uniform Commercial Code (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, the 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 certificate of incorporation, bylaws and applicable law, (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.
(fe) The Selling Shareholder is not prompted by has no knowledge of any information adverse business condition concerning the Company or its subsidiaries which that is not set forth in the Time of Sale Prospectus prompting it to sell its Shares pursuant to this Agreement.
(gf) (i) The Each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) the Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any 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, (iiiii) the Registration Statement and the Prospectus comply and, as amended or supplemented, if applicable, will comply in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder, (iv) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (v) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (iiivi) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that such the representations and warranties set forth in this subsection (gparagraph 2(e) apply only are limited to statements or omissions made in reliance upon and in conformity with Shareholder Information (defined below) information relating to the Selling Shareholder furnished to the Company in writing by or on behalf of the Selling Shareholder expressly for use in the Registration Statement, the Time of Sale Prospectus, the Time of Sale Prospectus and or any amendments or supplements thereto.
(g) (i) None of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea, Sudan and Syria).
(ii) The Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past five 5 years, the Selling Shareholder has not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(a) None of the Selling Shareholder or its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (b) the Selling Shareholder and its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein herein; and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(v) The operations of the Selling Shareholder and its subsidiaries are and have been conducted at all times in material compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the best knowledge of the Selling Shareholder, threatened.
(h) The Selling Shareholder has the power to submit, and has, to the extent permitted by law, legally, validly, effectively and irrevocably submitted, to the jurisdiction of the Specified Courts (as defined in Section 15(a)), and has the power to designate, appoint and empower, and, has legally, validly and effectively designated, appointed and empowered an agent for service of process in any suit or proceeding based on or arising under this Agreement in any of the Specified Courts.
Appears in 1 contract
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement Agreement, will not (i) contravene (a) any provision of the articles of association of the Selling Shareholder, (b) any provision of applicable law, or the certificate of incorporation or by-laws of the Selling Shareholder (if the Selling Shareholder is a corporation), or c) any agreement or other instrument binding upon the Selling Shareholder Shareholder, or (d) any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder exceptShareholder, except in each casethe case of clauses (i)(b) through (i)(d) above, where for any such contravention that would not not, singly or in the aggregate, affect the validity of the Shares to be sold by the Selling Shareholder or reasonably be expected to have a material adverse effect on materially impair the power and ability of the Selling Shareholder to perform its obligations hereunderconsummate the transactions contemplated by this Agreement, and no (ii) require any consent, approval, authorization or order of, or qualification with, any governmental body body, agency or agency court is required for the performance by the Selling Shareholder of its obligations under this Agreement Agreement, except for the registration of the Selling ShareholderShares under the Securities Act and such consents, except approvals, authorizations, orders or qualifications as have been obtained or such as may be required by the FINRA and applicable state securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares, except where the failure to obtain such consent, approval, authorization or order of, or qualification with, any governmental body or agency would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereunder.
(c) The Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares to be sold by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such Shares.
(d) [Reserved].
(e) Upon payment for the Shares to be sold by the 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 New York Uniform Commercial Code (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, the 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 certificate of incorporation, bylaws and applicable law, (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.
(e) The Selling Shareholder has delivered to the Representatives an executed lock-up agreement in substantially the form attached hereto as Exhibit A (the “Lock-up Agreement”).
(f) The Selling Shareholder is familiar with the Registration Statement, the Time of Sale Prospectus and the Prospectus and has no knowledge of any material fact, condition or information not disclosed in the Registration Statement, the Time of Sale Prospectus or the Prospectus that has had, or may have, a material adverse effect on the Company and its subsidiaries, taken as a whole. The Selling Shareholder is not prompted by any material information concerning the Company or its subsidiaries which is not set forth in the Registration Statement, the Time of Sale Prospectus or the Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain contain, as of the date of such amendment or supplement, any 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, (ii) the Registration Statement and the Prospectus comply and, as amended or supplemented, if applicable, will, as of the date of such amendment or supplement, comply in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder, (iii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and misleading, (iiiiv) the Prospectus does not contain and, as amended or supplementedeach broadly available road show, if applicableany, will when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, provided not misleading and (v) as of its date, the Prospectus does not contain and, as amended or supplemented, if applicable, as of the date of such amendment or supplement and as of the Closing Date, will 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, except that such the representations and warranties set forth in this subsection (g) paragraph do not apply only to statements or omissions made in reliance upon and in conformity with Shareholder Information (defined below) relating to the Selling Shareholder furnished in writing by or on behalf of the Selling Shareholder expressly for use in the Registration Statement, the Prospectus, the Time of Sale Prospectus and or the Prospectus based upon information relating to any amendments or supplements theretoUnderwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use therein.
(i) None of the Selling Shareholder or any of its subsidiaries, any director or officer thereof, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or controlled affiliate thereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Crimeathe so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic or any other Covered Region of Ukraine identified pursuant to Executive Order 14065, the Crimea region of Ukraine, Cuba, Iran, North Korea, Sudan Korea and Syria).
(ii) The Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) The Selling Shareholder and each of its subsidiaries and controlled affiliates (a) have conducted their businesses at all times in compliance with Sanctions, (b) have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein, and (c) no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries with respect to Sanctions is pending or, to the best knowledge of the Selling Shareholder, threatened.
(iv) For the past five years, the Selling Shareholder has not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(a) None of the Selling Shareholder or any of its subsidiariessubsidiaries or controlled affiliates, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or controlled affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (b) the Selling Shareholder and each of its subsidiaries and, to the Selling Shareholder’s knowledge, each of its controlled affiliates, have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein and herein; (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption lawslaws and (d) no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries with respect to any applicable anti-corruption laws is pending or, to the best knowledge of the Selling Shareholder, threatened.
(va) The operations of the Selling Shareholder and each of its subsidiaries and controlled affiliates are and have been conducted at all times in material compliance with all applicable Anti-Money Laundering Laws, (b) the Selling Shareholder and each of its subsidiaries and controlled affiliates have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein; (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in violation of the Anti-Money Laundering Laws; and (d) no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the best knowledge of the Selling Shareholder, threatened.
(i) The Selling Shareholder represents and warrants that it is not (i) an employee benefit plan subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), (ii) a plan or account subject to Section 4975 of the Internal Revenue Code of 1986, as amended or (iii) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R. 2510.3-101, or otherwise.
(j) No stamp, documentary, issuance, registration, transfer, withholding, or other similar taxes or duties are payable by or on behalf of the Underwriters, the Company or any of its subsidiaries in the Netherlands or the United States or to any taxing authority thereof or therein in connection with (i) the execution, delivery or consummation of this Agreement, (ii) the sale and delivery of the Shares by the Selling Shareholder to the Underwriters or purchasers procured by the Underwriters, or (iii) the resale and delivery of the Shares by the Underwriters in the manner contemplated herein.
(k) This Agreement is in proper form under the laws of the Netherlands for the enforcement thereof against the Selling Shareholder, and to ensure the legality, validity, enforceability or admissibility into evidence in the Netherlands of this Agreement.
(l) The courts of the Netherlands would recognize as a valid judgment any final monetary judgment obtained against the Selling Shareholder in the courts of the State of New York.
(m) Neither the Selling Shareholder nor any of its subsidiaries nor any of its or their properties or assets has any immunity from the jurisdiction of any court or from any legal process (whether through service or notice, attachment prior to judgment, attachment in aid of execution or otherwise) under the laws of the Netherlands. The irrevocable and unconditional waiver and agreement of the Selling Shareholder contained in Section 19 not to plead or claim any such immunity in any legal action, suit or proceeding based on this Agreement is valid and binding under the laws of the Netherlands.
(n) The choice of law of the State of New York as the governing law of this Agreement is a valid choice of law under the laws of the Netherlands and will be honored by the courts of the Netherlands. The Selling Shareholder has the power to submit, and pursuant to Section 19 has, to the extent permitted by law, legally, validly, effectively and irrevocably submitted, to the jurisdiction of the New York Courts (as defined in Section 19), and has the power to designate, appoint and empower, and pursuant to Section 19, has legally, validly and effectively designated, appointed and empowered an agent for service of process in any suit or proceeding based on or arising under this Agreement in any of the New York Courts.
Appears in 1 contract
Representations and Warranties of the Selling Shareholder. The --------------------------------------------------------- Selling Shareholder represents and warrants to to, and agrees with with, each of the several Underwriters and the Company that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement will not contravene any provision of applicable law, or the certificate of incorporation or by-laws of the Selling Shareholder (if the Selling Shareholder is a corporation), or any agreement or other instrument binding upon the Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder except, in each case, where any such contravention would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereunder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Selling Shareholder of its obligations under this Agreement of the Selling Shareholder, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares, except where the failure to obtain such consent, approval, authorization or order of, or qualification with, any governmental body or agency would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereunder.
(c) A. The Selling Shareholder hashas full right, power and on authority to enter into this Agreement, the Closing Date will havePower of Attorney and the Custody Agreement (as hereinafter defined) and to sell, valid title toassign, or a valid “security entitlement” within transfer and deliver to the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, Underwriters the Shares to be sold by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances hereunder; and the legal right execution and powerdelivery of this Agreement, the Power of Attorney and the Custody Agreement have been duly authorized by all necessary action of the Selling Shareholder.
B. The Selling Shareholder has duly executed and delivered this Agreement, the Power of Attorney and the Custody Agreement, and all authorization each constitutes the valid and approval required by lawbinding agreement of the Selling Shareholder enforceable against the Selling Shareholder in accordance with its terms, subject, as to enforcement, to enter into applicable bankruptcy, insolvency, reorganization and moratorium laws and other laws relating to or affecting the enforcement of creditors' rights generally and to general equitable principles and except to the extent enforcement of the indemnification provisions set forth in Section 8 of this Agreement and to sellmay be limited by federal or state securities laws or public policy underlying such laws.
C. No consent, transfer and deliver approval, authorization, order or declaration of or from, or registration, qualification or filing with, any court or governmental agency or body is required for the sale of the Shares to be sold by the Selling Shareholder or a security entitlement in respect the consummation of the transactions contemplated by this Agreement, the Power of Attorney or the Custody Agreement, except the registration of such SharesShares under the 1933 Act (which, if the Registration Statement is not effective as of the time of execution hereof, shall be obtained as provided in this Agreement) and such as may be required under state securities or blue sky laws in connection with the offer, sale and distribution of such Shares by the Underwriters.
(d) [Reserved].
(e) Upon payment for D. The sale of the Shares to be sold by such Selling Shareholder and the performance of this Agreement, the Power of Attorney and the Custody Agreement and the consummation of the transactions herein and therein contemplated will not conflict with, or (with or without the giving of notice or the passage of time or both) result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which the Selling Shareholder pursuant is a party or to this Agreementwhich any of its properties or assets is subject, delivery of nor will such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) action conflict with 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 violate any provision of the Underwriters (assuming that neither DTC nor charter or bylaws or other governing instruments of the Selling Shareholder, if any, or any such Underwriter has notice statute, rule or regulation or any order, judgment or decree of any adverse claim (within court or governmental agency or body having jurisdiction over the meaning of Section 8-105 Selling Shareholder or any of the New York Uniform Commercial Code Selling Shareholder's properties or assets.
E. At the Closing Time (the “UCC”as defined in Section 3 hereof)) 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, the 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 certificate of incorporation, bylaws good and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries valid title to the accounts Selling Shareholder Shares free and clear of all liens, security interests, pledges, charges, encumbrances, defects, shareholders' agreements, voting trusts and claims of any nature whatsoever; and, upon delivery of such Selling Shareholder Shares against payment therefor as provided herein, good and valid title to such Selling Shareholder Shares, free and clear of all liens, security interests, pledges, charges, encumbrances, defects, shareholders' agreements, voting trusts, equities or claims of any nature whatsoever, will pass to the several Underwriters on the records of DTC will have been made pursuant to the UCCUnderwriters.
(f) F. The Selling Shareholder is has not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) The taken, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares or (ii) since the filing of the Registration StatementStatement (A) sold, when bid for, purchased or paid anyone any compensation for soliciting purchases of, the Shares or (B) paid or agreed to pay to any person any compensation for soliciting another to purchase any other securities of the Company.
G. When any Preliminary Prospectus was filed with the Commission (i) it became effectivecontained all statements required to be stated therein regarding the Selling Shareholder in accordance with, and complied in all material respects regarding the Selling Shareholder with the requirements of, the 1933 Act and the rules and regulations of the Commission thereunder, and (ii) such statements in the Preliminary Prospectus as are made in reliance upon and in conformity with written information furnished to the Company by the Selling Shareholder for use therein did not contain and, as amended or supplemented, if applicable, will not contain include any 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, (ii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will 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 misleading. When the Registration Statement or any amendment thereto or any 462(b) Registration Statement or any amendment thereto was or is declared effective and at the Closing Time or the Date of Delivery, as the case may be, (i) it contained or will contain all statements required to be stated therein regarding the Selling Shareholder in accordance with, and complied or will comply in all material respects regarding the Selling Shareholders with the requirements of, the 1933 Act and the rules and regulations of the Commission thereunder and (iiiii) such statements in the Prospectus does Registration Statement, any 462(b) Registration Statement or any amendment thereto as are made in reliance upon and in conformity with written information furnished to the Company by the Selling Shareholder specifically for use therein did not contain and, as amended or supplemented, if applicable, will not contain include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading. When the Prospectus or any amendment or supplement thereto is filed with the Commission pursuant to Rule 424(b) (or, if the Prospectus or such amendment or supplement is not required to be so filed, when the Registration Statement or the amendment thereto containing such amendment or supplement to the Prospectus was or is declared effective), and at the Closing Time or the Date of Delivery, as the case may be, (i) the Prospectus, as amended or supplemented at any such time, contained or will contain all statements required to be stated therein regarding the Selling Shareholder in accordance with, and complied or will comply in all material respects regarding the Selling Shareholder with the requirements of, the 1933 Act and the rules and regulations of the Commission thereunder and (ii) such statements in the Prospectus, as amended or supplemented at any such time, as are made in reliance upon and in conformity with written information furnished to the Company by the Selling Shareholder specifically for use therein did not or will not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, provided not misleading. In order to document the Underwriters' compliance with the reporting and withholding provisions of the Internal Revenue Code of 1986, as amended, with respect to the transactions herein contemplated, the Selling Shareholder agrees to deliver to you prior to or at the Closing Time (as hereinafter defined) a properly completed and executed United States Treasury Department form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof). The Selling Shareholder represents and warrants that the certificates in negotiable form representing the Selling Shareholder Shares have been placed in custody under a custody agreement (the "Custody Agreement"), in the form heretofore furnished to and approved by you, duly executed and delivered by such Selling Shareholder to Union Planters Bank, N.A. as custodian (the "Custodian"), and that such representations Selling Shareholder has duly executed and warranties set forth delivered a power of attorney (the "Power of Attorney"), in the form heretofore furnished to and approved by you, appointing Xxxxx X. Fair and Xxxx X. Xxxxxx as such Selling Shareholder's attorneys-in-fact (the "Attorneys-in-Fact") with authority to execute and deliver this subsection (g) apply only Agreement on behalf of such Selling Shareholder, to statements or omissions made in reliance upon and in conformity with Shareholder Information (defined below) relating determine the purchase price to be paid by the Underwriters to the Selling Shareholder furnished as provided in writing Section 3 hereof, to authorize the delivery of the Shares to be sold by or such Selling Shareholder hereunder and otherwise to act on behalf of such Selling Shareholder in connection with the transactions contemplated by this Agreement and the Custody Agreement. The Selling Shareholder specifically agrees that the Shares represented by the certificates held in custody for the Selling Shareholder under the Custody Agreement are subject to the interests of the Underwriters hereunder, and that the arrangements made by such Selling Shareholder for such custody, and the appointment by the Selling Shareholder of the Attorneys-in-Fact by the Power of Attorney, are irrevocable. The Selling Shareholder specifically agrees that the obligations of the Selling Shareholder expressly for use in hereunder shall not be terminated by operation of law, whether by the Registration Statement, the Prospectus, the Time of Sale Prospectus and any amendments or supplements thereto.
(i) None of the Selling Shareholder or any of its subsidiaries, or, to the knowledge dissolution of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject occurrence of any Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea, Sudan and Syria)other event.
(ii) The Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past five years, the Selling Shareholder has not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(a) None of the Selling Shareholder or its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (b) the Selling Shareholder and its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(v) The operations of the Selling Shareholder and its subsidiaries are and have been conducted at all times in material compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Selling Shareholder, threatened.
Appears in 1 contract
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement Agreement, will not contravene any provision of applicable law, or the agreement or certificate of incorporation or by-laws limited partnership of the Selling Shareholder (if the Selling Shareholder is a corporation), Shareholder; or any agreement or other instrument binding upon the such Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the such Selling Shareholder except, in each case, where any such contravention would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereunderShareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the such Selling Shareholder of its obligations under this Agreement of the Selling ShareholderAgreement, except such as may be required by the securities or Blue Sky laws of the various states or the securities laws of non-U.S. jurisdictions in connection with the offer and sale of the Shares, except where the failure to obtain such consent, approval, authorization or order of, or qualification with, any governmental body or agency would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereunder.
(c) The Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, to the Shares to be sold by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such SharesShareholder.
(d) [Reserved]The Shares to be sold by the Selling Shareholder pursuant to this Agreement have been duly authorized and are validly issued, fully paid and non-assessable.
(e) Upon payment for Delivery of the Shares to be sold by the 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 New York Uniform Commercial Code (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 Agreement 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, pass title to such Shares may be asserted against the Underwriters with respect to such free and clear of any security entitlement; for purposes of this representationinterests, the Selling Shareholder may assume that when such paymentclaims, delivery liens, equities 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 certificate of incorporation, bylaws and applicable law, (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 UCCother encumbrances.
(f) The All information furnished by or on behalf of the Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth for use in the Time of Sale Registration Statement and Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) The Registration Statementis , when it became effectiveand on the Closing Date and on the Option Closing Date will be, did not contain andtrue, as amended or supplementedcorrect, if applicableand complete, will not contain any 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, (ii) the Time of Sale Prospectus and does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at on the Closing Date (as defined in Section 5), and on the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, Option Closing Date will not, contain any untrue statement of a material fact or omit to state a any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, such information not misleading and (iii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, provided that such representations and warranties set forth in this subsection (g) apply only to statements or omissions made in reliance upon and in conformity with Shareholder Information (defined below) relating to the Selling Shareholder furnished in writing by or on behalf of the Selling Shareholder expressly for use in the Registration Statement, the Prospectus, the Time of Sale Prospectus and any amendments or supplements theretomisleading.
(i) None of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea, Sudan and Syria).
(ii) The Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past five years, the Selling Shareholder has not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(a) None of the Selling Shareholder or its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (b) the Selling Shareholder and its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(v) The operations of the Selling Shareholder and its subsidiaries are and have been conducted at all times in material compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Selling Shareholder, threatened.
Appears in 1 contract
Samples: Underwriting Agreement (Omniquip International Inc)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The deposit of the Underlying Shares by the Selling Shareholder with the Depositary against issuance of the ADRs evidencing the ADSs to be delivered by the Selling Shareholder and the execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement will not contravene any provision of applicable law, or the certificate of incorporation or by-laws articles of association (vedtekter) of the Selling Shareholder (if the Selling Shareholder is a corporation)Shareholder, or any agreement or other instrument binding upon the Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder except, in each case, where any such contravention would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereunderShareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Selling Shareholder of its obligations under this Agreement of the Selling ShareholderAgreement, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares, except where the failure to obtain such consent, approval, authorization or order of, or qualification with, any governmental body or agency would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereunderSecurities.
(c) The Selling Shareholder has, beneficially owns and on the Closing Date will have, beneficially own or has and will have on the Closing Date a valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Underlying Shares to be represented by the ADSs to be sold by the Selling Shareholder hereunder, free and clear of all security interests, claims, liens, equities or other encumbrances encumbrances; and the Selling Shareholder has the legal right and power, and all authorization and approval required by law, to enter into the Deposit Agreement and to deposit the Underlying Shares with the Depositary against the issuance of the ADRs evidencing the ADSs to be delivered by the Selling Shareholder.
(d) The Selling Shareholder has the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares Securities to be sold by the Selling Shareholder or a security entitlement in respect of such Shares.
(d) [Reserved]Securities.
(e) Upon payment for The ADSs representing the Underlying Shares to be sold by were deposited in accordance with the Selling Shareholder pursuant to this Agreementprovisions of the Deposit Agreement and were duly issued, and, upon the sale and delivery of such Shares, as directed the ADRs to the person(s) procured by the Underwriters, the person(s) in whose name(s) the ADRs are registered will be entitled to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares rights in the name of Cede or such other nominee and ADSs representing the crediting of such Underlying 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 New York Uniform Commercial Code (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, the Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered specified in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (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 UCCDeposit Agreement.
(f) No stamp, documentary, issuance, registration, transfer, withholding, capital gains, income or other taxes or duties are payable by or on behalf of the Underwriters, the Company or any of its subsidiaries in Norway or to any taxing authority thereof or therein in connection with (i) the execution, delivery or consummation of this Agreement, (ii) the sale and delivery of the Securities to the Underwriters or purchasers procured by the Underwriters, or (iii) the resale and delivery of the Securities by the Underwriters in the manner contemplated herein.
(g) The statements set forth under the heading “Material U.S. Federal Income Tax Considerations” in the Registration Statement or any amendment thereto, to the extent that they relate to matters of U.S. federal income tax law and legal conclusions with respect thereto, other than the statements under the heading “Passive Investment Company Rules” relating to the Company’s status under the U.S. federal income tax rules defining the term “passive foreign investment company”, to the extent that they relate to matters of U.S. federal income tax law and legal conclusions with respect thereto, are accurate and complete in all material respects.
(h) The Selling Shareholder is not prompted Information in the Registration Statement or any amendment thereof constitutes a fair summary of the matters described therein.
(i) The Selling Shareholder has the power to submit, and pursuant to Section 19(a) has, to the extent permitted by law, legally, validly, effectively and irrevocably submitted, to the jurisdiction of the Specified Courts, and has the power to designate, appoint and empower, and pursuant to Section 19(c), has legally, validly and effectively designated, appointed and empowered an agent for service of process in any information concerning suit or proceeding based on or arising under this Agreement in any of the Specified Courts.
(j) The Selling Shareholder has no reason to believe that the representations and warranties of the Company contained in Section 1 are not true and correct, is familiar with the Registration Statement, the Time of Sale Prospectus and the Prospectus and has no knowledge of any material fact, condition or its subsidiaries which is information not set forth disclosed in the Time of Sale Prospectus to sell its Shares pursuant to this Agreementthat has had, or may have, a Material Adverse Effect.
(g) (i) The Each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) each of the Registration Statement and the ADR Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any 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, (iiiii) the Registration Statement, the ADR Registration Statement and the Prospectus comply and, as amended or supplemented, if applicable, will comply in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder, (iv) the Time of Sale Prospectus does not, and at the time of each sale of the Shares Securities in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (v) each live road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (iiivi) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, provided not misleading, except that such the representations and warranties set forth in this subsection (gparagraph 2(k) do not apply only to statements or omissions made in reliance the Registration Statement or the Prospectus based upon and in conformity with Shareholder Information (defined below) information relating to any Underwriter furnished to the Selling Shareholder furnished Company in writing by or on behalf of the Selling Shareholder such Underwriter through you expressly for use in the Registration Statement, the Prospectus, the Time of Sale Prospectus and any amendments or supplements theretotherein.
(i) None of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof, or other person associated with or acting on behalf of the Selling Shareholder or any of its subsidiaries, is a Person that is, or is owned or controlled by one a Sanctioned Person, or more Persons that are:
(A) the subject of any Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea, Sudan and Syria)Sanctioned Country.
(ii) The Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Sanctioned Person or in any country or territory that, at the time of such funding or facilitation, is the subject of SanctionsSanctioned Countries; or
(B) in any other manner that will result in a violation of Sanctions sanctions laws by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past five years, the Selling Shareholder has and its subsidiaries have not knowingly engaged in, is are not now knowingly engaged in, and will not engage in, any dealings or transactions with any Sanctioned Person, or in any country or territorySanctioned Country, that at other than such limited telecommunications-related transactions with Sanctioned Countries as are permitted under the time terms of the dealing or transaction is or was relevant Sanctions (including, without limitation, those transactions disclosed in VimpelCom’s Annual Report on Form 20-F for the subject of Sanctionsfiscal year ended December 31, 2015).
(a) None of the Selling Shareholder or its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, affiliate thereof, or affiliate thereof other person associated with or acting on behalf of the Selling Shareholder has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable antiAnti-corruption lawsCorruption Laws; (b) the Selling Shareholder and its subsidiaries have conducted their businesses in compliance with applicable antiAnti-corruption laws Corruption Laws and have instituted and maintained maintained, and will continue to maintain maintain, policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable antiAnti-corruption lawsCorruption Laws.
(v) The operations of the Selling Shareholder and its subsidiaries are and have been conducted at all times in material compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the best knowledge of the Selling Shareholder, threatened.
(m) This Agreement is in proper form under the laws of Norway for the enforcement thereof against the Selling Shareholder, and to ensure the legality, validity, enforceability or admissibility into evidence in Norway of this Agreement.
(n) The courts of Norway would recognize as a valid judgment any final monetary judgment relating to the Agreement obtained against the Selling Shareholder in the courts of the State of New York.
(o) Neither the Selling Shareholder nor any of its subsidiaries nor any of its or their properties or assets has any immunity from the jurisdiction of any court or from any legal process (whether through service or notice, attachment prior to judgment, attachment in aid of execution or otherwise) under the laws of Norway. The irrevocable and unconditional waiver and agreement of the Selling Shareholder contained in Section 19(a) not to plead or claim any such immunity in any legal action, suit or proceeding based on this Agreement is valid and binding under the laws of Norway.
(p) The choice of law of the State of New York as the governing law of this Agreement is a valid choice of law under the laws of Norway and will be honored by the courts of Norway.
Appears in 1 contract
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriters Underwriter that:
(a) Such Selling Shareholder now has, and on the Closing Date will have, valid and marketable title to the Shares to be sold by such Selling Shareholder, free and clear of any lien, claim, security interest or other encumbrance, including, without limitation, any restriction on transfer.
(b) Such Selling Shareholder now has, and on the Closing Date will have, full legal right, power and authorization, and any approval required by law, to sell, assign transfer and deliver such Shares in the manner provided in this Agreement, and upon delivery of and payment for such Shares hereunder, the several Underwriters will acquire valid and marketable title to such Shares free and clear of any lien, claim, security interest, or other encumbrance.
(c) This Agreement has and the Custody Agreement have been duly authorized, executed and delivered by or on behalf of such Selling Shareholder and are the valid and binding agreements of such Selling ShareholderShareholder enforceable against such Selling Shareholder in accordance with their terms.
(bd) The Neither the execution and delivery of this Agreement or the Custody Agreement by the or on behalf of such Selling Shareholder of, and nor the performance consummation of the transactions herein or therein contemplated by the or on behalf of such Selling Shareholder of its obligations under, this Agreement will not contravene requires any provision of applicable law, or the certificate of incorporation or by-laws of the Selling Shareholder (if the Selling Shareholder is a corporation), or any agreement or other instrument binding upon the Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder except, in each case, where any such contravention would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereunder, and no consent, approval, authorization or order of, or qualification filing or registration with, any court, regulatory body, administrative agency or other governmental body body, agency or agency is required for the performance by the Selling Shareholder of its obligations under this Agreement of the Selling Shareholder, official (except such as may be required by under the Act or such as may be required under state securities or Blue Sky laws of governing the various states in connection with the offer purchase and sale distribution of the Shares, except where the failure to obtain such consent, approval, authorization ) or order conflicts or will conflict with or constitutes or will constitute a breach of, or qualification withdefault under, or violates or will violate, any governmental body or agency would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereunder.
(c) The Selling Shareholder hasagreement, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares to be sold by the Selling Shareholder free and clear of all security interests, claims, liens, equities indenture or other encumbrances and the legal right and power, and all authorization and approval required by law, instrument to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of which such Shares.
(d) [Reserved].
(e) Upon payment for the Shares to be sold by the 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 New York Uniform Commercial Code (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, the 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 certificate of incorporation, bylaws and applicable law, (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.
(f) The Selling Shareholder is not prompted a party or by any information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any 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, (ii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (iii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, provided that such representations and warranties set forth in this subsection (g) apply only to statements or omissions made in reliance upon and in conformity with Shareholder Information (defined below) relating to the Selling Shareholder furnished in writing by is or on behalf of the Selling Shareholder expressly for use in the Registration Statement, the Prospectus, the Time of Sale Prospectus and any amendments may be bound or supplements thereto.
(i) None of the Selling Shareholder or to which any of its subsidiaries, or, to the knowledge of the such Selling Shareholder, any director, officer, employee, agent, representative's property or assets is subject, or affiliate thereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea, Sudan and Syria).
(ii) The Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past five years, the Selling Shareholder has not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(a) None of the Selling Shareholder or its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (b) the Selling Shareholder and its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(v) The operations of the Selling Shareholder and its subsidiaries are and have been conducted at all times in material compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Selling Shareholder, threatened.any
Appears in 1 contract
Samples: Underwriting Agreement (Hastings Entertainment Inc)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriters Underwriter that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations underunder this Agreement, this Agreement will not contravene any provision of applicable law, or the certificate of incorporation or by-laws of the Selling Shareholder (if the Selling Shareholder is a corporation)Shareholder, or any agreement or other instrument binding upon the Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder except, in each case, where any such contravention would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereunderShareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Selling Shareholder of its obligations under this Agreement of the Selling ShareholderAgreement, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares, except where the failure to obtain such consent, approval, authorization or order of, or qualification with, any governmental body or agency would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereunder.
(c) The Selling Shareholder has, and on the Closing Date or the Option Closing Date, as the case may be, (as defined in Sections 3 and 5 hereof) will have, 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 to be sold by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such Shares.
(d) [Reserved].
(e) Upon payment for the Shares to be sold by the Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the UnderwritersUnderwriter, 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 Underwriter (assuming that neither DTC nor any such the Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (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 Underwriter 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 Underwriter with respect to such security entitlement; for purposes of this representation, the 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 certificate of incorporation, bylaws and applicable law, (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 account of the several Underwriters Underwriter on the records of DTC will have been made pursuant to the UCC.
(fe) The Selling Shareholder has no reason to believe (without independent investigation) that the representations and warranties of the Company contained in Section 1 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 Prospectus that has had, or may have, a Material Adverse Effect. The Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries Subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any 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 (ii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (iii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, provided not misleading, except that such the representations and warranties set forth in this subsection (gSection 2(f) apply only to statements or omissions made in reliance upon and or incorporated by reference in conformity with Shareholder Information (defined below) relating the Registration Statement or the Prospectus furnished to the Selling Shareholder furnished Company in writing by or on behalf of the Selling Shareholder expressly for use therein. The Company and the Underwriter acknowledge that the information on the Selling Shareholder appearing in the Registration Statement, Prospectus in the Prospectus, first sentence of the Time second paragraph under the heading “The Selling Stockholder” and the information in the third paragraph under the heading “The Selling Stockholder” regarding the number of Sale Prospectus shares of Common Stock owned by the Selling Stockholder both before and any amendments after the sale of the Shares contemplated by this Agreement constitutes the only information furnished by or supplements thereto.
(i) None on behalf of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of Company expressly for use in the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) Registration Statement and the subject of any Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea, Sudan and Syria)Prospectus.
(iig) The Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past five years, the Selling Shareholder has not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(a) None of the Selling Shareholder or its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (b) the Selling Shareholder and its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(v) The operations of the Selling Shareholder and its subsidiaries There are and have been conducted at all times in material compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court legal or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is proceedings pending or, to the knowledge of the Selling Shareholder, threatenedthreatened to which the Selling Shareholder is a party or to which any of the properties of the Selling Shareholder is subject other than proceedings that would not have a material adverse effect on the power or ability of the Selling Shareholder to perform its obligations under this Agreement or to consummate the transactions contemplated by the Prospectus.
(h) The Selling Shareholder has not taken, and will not take, directly or indirectly, any action designed to, or which might reasonably be expected to, cause or result in stabilization nor manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares pursuant to the distribution contemplated by this Agreement, and other than as permitted by the Securities Act, the Selling Shareholder has not distributed and will not distribute any prospectus or other offering material in connection with the offering and sale of the Shares.
Appears in 1 contract
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriters Underwriter that:
(a) This Agreement has and the Forward Sale Agreement have been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement and the Forward Sale Agreement will not contravene any provision of applicable law, or the certificate memorandum and articles of incorporation or by-laws association of the Selling Shareholder (if the Selling Shareholder is a corporation)Shareholder, or any agreement or other instrument binding upon the Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder except, in each case, where any such contravention would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereunderShareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Selling Shareholder of its obligations under this Agreement of and the Selling ShareholderForward Sale Agreement, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Fixed Price Shares, except where the failure to obtain such consent, approval, authorization or order of, or qualification with, any governmental body or agency would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereunder.
(c) The Selling Shareholder has, and on immediately prior to delivery of the Closing Date Forward Shares to GSFM pursuant to the Forward Sale Agreement the Selling Shareholder will have, 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 Forward Shares to be sold by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances (except for any lien or security interest in favor of GSFM) and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and the Forward Sale Agreement and to sell, transfer and deliver the Forward Shares to be sold by the Selling Shareholder or a security entitlement in respect of such Forward Shares.
(d) [Reserved].
(e) Upon payment for the Forward Shares to be sold by the Selling Shareholder pursuant to this the Forward Sale Agreement, delivery of such Forward Shares, as directed by the UnderwritersGSFM, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Forward Shares in the name of Cede or such other nominee and the crediting of such Forward Shares on the books of DTC to securities accounts of the Underwriters GSFM (assuming that neither DTC nor any such Underwriter GSFM has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”)) to such Forward Shares), (A) DTC shall be a “protected purchaser” of such Forward Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters GSFM will acquire a valid security entitlement in respect of such Forward Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Forward Shares may be asserted against the Underwriters GSFM with respect to such security entitlement; for purposes of this representation, the Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Forward 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 register in accordance with its certificate memorandum and articles of incorporation, bylaws association and applicable law, (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 GSFM on the records of DTC will have been made pursuant to the UCC.
(f) The Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any 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, (ii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (iiiii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, provided that such the representations and warranties set forth in this subsection (gparagraph 2(e) apply only are limited to statements or omissions in the Registration Statement or Prospectus made in reliance upon and in conformity with Shareholder Information (defined below) information relating to the Selling Shareholder furnished to the Company in writing by or on behalf of the Selling Shareholder expressly for use in the Registration Statement, the Prospectus, the Time of Sale Prospectus and or any amendments or supplements thereto.
(i) None of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea, Sudan and Syria).
(ii) The Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past five years, the Selling Shareholder has not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(a) None of the Selling Shareholder or its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (b) the Selling Shareholder and its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(v) The operations of the Selling Shareholder and its subsidiaries are and have been conducted at all times in material compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Selling Shareholder, threatened.
Appears in 1 contract
Representations and Warranties of the Selling Shareholder. The Selling --------------------------------------------------------- Shareholder hereby represents and warrants to and agrees with each of the Underwriters thatUnderwriter as follows:
(a) The Selling Shareholder has caused certificates for the number of Shares to be sold by the Selling Shareholder hereunder to be delivered to Xxxxx X. Xxxxxxxx, endorsed in blank or with blank stock powers duly executed, with a signature appropriately guaranteed, such certificates to be held in custody by the Custodian for delivery, pursuant to the provisions of this Agreement and an agreement dated June __, 1999 between the Custodian and the Selling Shareholder (the "Custody Agreement").
(b) The Selling Shareholder has granted an irrevocable power of attorney (the "Power of Attorney") to the person named therein, on behalf of the Selling Shareholder, to execute and deliver this Agreement and any other document necessary or desirable in connection with the transactions contemplated hereby and to deliver the shares to be sold by the Selling Shareholder pursuant hereto.
(c) This Agreement, the Custody Agreement has and the Power of Attorney have each been duly authorized, executed and delivered by or on behalf of the Selling Shareholder and, assuming due authorization, execution and delivery by the other parties hereto or thereto, each constitutes the valid and legally binding agreement of the Selling Shareholder, enforceable against the Selling Shareholder in accordance with its terms.
(bd) The execution and delivery by the Selling Shareholder of, of this Agreement and the performance by the Selling Shareholder of its obligations under, under this Agreement (i) will not contravene any provision of applicable law, statute, regulation or the certificate of incorporation or by-laws of the Selling Shareholder (if the Selling Shareholder is a corporation), filing or any agreement or other instrument binding upon the Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder exceptShareholder, in each case, where (ii) does not require any such contravention would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereunder, and no consent, approval, authorization or order of, of or qualification with, registration or filing with any court or governmental agency or body or agency is required for the performance by the Selling Shareholder of its obligations under this Agreement of the Selling Shareholderhaving jurisdiction over it, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the SharesShares which have been or will be effected in accordance with this Agreement, except where (iii) does not and will not violate any statute, law, regulation or filing or judgment, injunction, order or decree applicable to the failure to obtain such consentSelling Shareholder and (iv) will not result in the creation or imposition of any lien, approval, authorization charge or order of, encumbrance upon any property or qualification with, any governmental body or agency would not reasonably be expected to have a material adverse effect on the ability assets of the Selling Shareholder pursuant to perform its obligations hereunderthe terms of any agreement or instrument to which the Selling Shareholder is a party or by which the Selling Shareholder may be bound or to which any of the property or assets of the Selling Shareholder is subject.
(ce) The Selling Shareholder has, and on the Firm Shares Closing Date will have, valid and marketable title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, to the Shares to be sold by the Selling Shareholder free and clear of all any lien, claim, security interests, claims, liens, equities interest or other encumbrances and the legal right and powerencumbrance, including any restriction on transfer.
(f) The Selling Shareholder has, and all authorization on the Firm Shares Closing Date will have, full legal right, power and authorization, and any approval required by law, to enter into this Agreement and to sell, assign, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such Sharesthe manner provided by this Agreement.
(d) [Reserved].
(eg) Upon delivery of and payment for the Shares to be sold by the 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 New York Uniform Commercial Code (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 several Underwriters will acquire a receive 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, marketable title to such Shares may be asserted against the Underwriters with respect free and clear of any lien, claim, security interest or other encumbrance.
(h) All information relating to such security entitlement; for purposes of this representation, the Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered furnished in writing by the Selling Shareholder expressly for use in the name of Cede or another nominee designated by DTCRegistration Statement and Prospectus is, in and on each case on the Company’s share registry in accordance with its certificate of incorporationClosing Date will be, bylaws true, correct and applicable lawcomplete, (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.
(f) The Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any 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, (ii) the Time of Sale Prospectus does not, and at the time of on each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, such information not misleading and (iii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, provided that such representations and warranties set forth in this subsection (g) apply only to statements or omissions made in reliance upon and in conformity with Shareholder Information (defined below) relating to the Selling Shareholder furnished in writing by or on behalf of the Selling Shareholder expressly for use in the Registration Statement, the Prospectus, the Time of Sale Prospectus and any amendments or supplements theretomisleading.
(i) None The Selling Shareholder has no reason to believe that any representation or warranty of the Company set forth in Section 4 above is untrue or inaccurate in any material respect.
(j) The representations and warranties of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea, Sudan and Syria).
(ii) The Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past five years, the Selling Shareholder has not knowingly engaged in, is not now knowingly engaged inCustody Agreement are, and on each Closing Date will not engage inbe, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctionstrue and correct.
(a) None of the Selling Shareholder or its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (b) the Selling Shareholder and its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(v) The operations of the Selling Shareholder and its subsidiaries are and have been conducted at all times in material compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Selling Shareholder, threatened.
Appears in 1 contract
Samples: Underwriting Agreement (Financial Institutions Inc)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to to, and agrees with each of with, the Underwriters Underwriter that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder, and assuming due execution by the Company, the Bank and the Underwriter, constitutes the valid and binding agreement of the Selling Shareholder, enforceable against the Selling Shareholder in accordance with its terms (except in all cases to the extent as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, receivership, moratorium, readjustment of debt, fraudulent conveyance, or similar laws relating to or affecting creditors' rights generally or general principles of equity, whether considered in a proceeding in equity or at law, and except as the enforcement of rights to indemnity and contribution under this Agreement may be limited under applicable securities laws or the public policy underlying such laws).
(b) The execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement and the Power of Attorney appointing certain individual(s) as such Selling Shareholder's attorney(s)-in-fact to the extent set forth therein, relating to the transactions contemplated hereby and by the Registration Statement (as hereinafter defined) (the "Power of Attorney") will not contravene (with or without the giving of notice or the passage of time or both) (i) conflict with any term or provision of applicable law, or the certificate Selling Shareholder's articles of incorporation or by-laws bylaws or other organizational documents, as amended, (ii) result in a breach or violation of any of the Selling Shareholder (if terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which the Selling Shareholder is a corporation)party or to which its properties or assets is subject or (iii) conflict with or violate any law, statute, rule or regulation or any agreement or other instrument binding upon the Selling Shareholder or any judgmentorder, order judgment or decree of any court or governmental body, agency or court body having jurisdiction over the Selling Shareholder except, in each case, where or any such contravention would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereunder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Selling Shareholder of its obligations under this Agreement of the Selling Shareholder, except such as may be required by the securities 's properties or Blue Sky laws of the various states in connection with the offer and sale of the Shares, except where the failure to obtain such consent, approval, authorization or order of, or qualification with, any governmental body or agency would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereunderassets.
(c) The Selling Shareholder has, and on the Closing Date will have, as of the Time of Delivery (as hereinafter defined), valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, to the Shares to be sold by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and the Power of Attorney and to sell, transfer and deliver the Shares.
(d) The Power of Attorney has been duly authorized, executed and delivered by the Selling Shareholder and is a valid and binding agreement of the Selling Shareholder.
(e) Upon delivery of the certificates for the Shares properly indorsed to the Underwriter and payment of the purchase price therefor pursuant to this Agreement, assuming the Underwriter has no notice of adverse claim and is acting in good faith, title to such Shares will be passed to the Underwriter, free and clear of all liens, security interests, pledges, charges, equities, and other encumbrances, other than as created by or through the Underwriter.
(f) The Selling Shareholder does not require any consent, approval, authorization, order or declaration of or from, or registration, qualification or filing with, any court or governmental agency or body in connection with the sale of the Shares to be sold by the Selling Shareholder or a security entitlement the consummation of the transactions contemplated by this Agreement, except for the registration of the Shares under the Act, of the Common Stock under the Exchange Act (as hereinafter defined) and such as may be required by the NASD (as hereinafter defined) and under state securities or blue sky laws in respect connection with the offer, sale and distribution of such Sharesthe Shares by the Underwriter.
(d) [Reserved].
(e) Upon payment for the Shares to be sold by the 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 New York Uniform Commercial Code (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, the 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 certificate of incorporation, bylaws and applicable law, (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.
(fg) The Selling Shareholder is has not prompted by (i) taken, directly or indirectly, any information concerning action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any security of the Company to facilitate the sale or its subsidiaries which is not set forth in resale of the Time Shares or (ii) since the filing of Sale Prospectus the Registration Statement (A) sold, bid for, purchased or paid anyone any compensation for soliciting purchases of, the Shares or (B) paid or agreed to sell its Shares pay to any person any compensation for soliciting another to purchase any other securities of the Company, other than pursuant to this Agreement.
(g) (ih) The Selling Shareholder has read the Registration Statement, when it became effectiveeach Preliminary Prospectus (as hereinafter defined), and the Prospectus (as hereinafter defined) and, to the extent of any statement or omission from the Registration Statement, any Preliminary Prospectus, or the Prospectus which were made or omitted in reliance upon and in conformity with information 2- furnished to the Company by the Selling Shareholder for use therein, to the best knowledge of the Selling Shareholder, the Registration Statement, at the effective date, each Preliminary Prospectus, at its date of issuance, and the Prospectus, from its date of issuance through the Time of Delivery, did not contain and, as amended or supplemented, if applicable, will not contain any 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, (ii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (iii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, therein not misleading in the light of the circumstances under in which they were made, provided that such representations and warranties set forth in this subsection (g) apply only to statements or omissions made in reliance upon and in conformity with Shareholder Information (defined below) relating to the Selling Shareholder furnished in writing by or on behalf of the Selling Shareholder expressly for use in the Registration Statement, the Prospectus, the Time of Sale Prospectus and any amendments or supplements thereto.
(i) None of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea, Sudan and Syria).
(ii) The Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past five years, the Selling Shareholder has not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(a) None of the Selling Shareholder or its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (b) the Selling Shareholder and its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(v) The operations of the Selling Shareholder and its subsidiaries are and have been conducted at all times in material compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Selling Shareholder, threatened.
Appears in 1 contract
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement, the Custody Agreement and the [Power of Attorney] appointing certain individuals as the Selling Shareholder's attorneys-in-fact to the extent set forth therein, relating to the transactions contemplated hereby and by the Registration Statement [(the "POWER OF ATTORNEY")] will not contravene any provision of applicable law, or (i) the certificate of incorporation or by-laws of the Selling Shareholder or (if the Selling Shareholder is a corporation), or ii) any agreement or other instrument binding upon the Selling Shareholder or any applicable law, judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder exceptShareholder, in each caseexcept for the contravention of an agreement, where any such contravention instrument or applicable law which would not reasonably be expected to have a material adverse effect on materially and adversely affect the ability consummation of the transactions contemplated by this Agreement by the Selling Shareholder to perform its obligations hereunderShareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Selling Shareholder of its obligations under this Agreement or the Custody Agreement or [Power of Attorney] of the Selling Shareholder, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares, Shares and except where the failure to obtain such consent, approval, authorization for any filing or order of, or qualification with, any governmental body or agency would not reasonably disclosure that may be expected to have a material adverse effect on the ability required of the Selling Shareholder under Canadian securities laws or the rules of the Toronto Stock Exchange, PROVIDED that any failure to perform its obligations hereundermake such a filing or disclosure would not materially and adversely affect the transactions contemplated by this Agreement.
(c) The Custody Agreement and the [Power of Attorney] have been duly authorized, executed and delivered by the Selling Shareholder and are valid and binding agreements of the Selling Shareholder 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.
(d) The Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “"security entitlement” " within the meaning of Section 8-501 102 of the New York Uniform Commercial Code ("UCC") in respect of, the Shares to be sold by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement, the Custody Agreement and the [Power of Attorney] and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such Shares.
(d) [Reserved].
(e) Upon payment for the Shares to be sold by the Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”"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 records 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 to such Shares or any security entitlement in respect of Section 8-105 of the New York Uniform Commercial Code (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, UCC and (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares free and (C) no action based on clear of 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, the 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 certificate of incorporation, bylaws and applicable law, (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.
(f) The Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any 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, (ii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (iii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, provided not misleading; PROVIDED that such the representations and warranties set forth in this subsection (g) apply only paragraph are limited to statements or omissions made in reliance upon and in conformity with Shareholder Information (defined below) information relating to the Selling Shareholder furnished to the Company in writing by or on behalf of the Selling Shareholder expressly for use in the Registration Statement, the Prospectus, the Time of Sale Prospectus and or any amendments or supplements thereto. It is understood and agreed that the only written information furnished to the Company by the Selling Shareholder specifically for use in the Registration Statement is the information relating to the Selling Shareholder set forth in the table under the caption "Principal and Selling Shareholders" in the Prospectus.
(i) None of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea, Sudan and Syria).
(iih) The Selling Shareholder has not taken, and will notnot take, directly or indirectly, use the proceeds any action designed to, or which might reasonably be expected to, cause or result in stabilization or manipulation of the offeringprice of any security of the Company to facilitate the sale or resale of the Shares pursuant to the distribution contemplated by this Agreement, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past five years, and the Selling Shareholder has not knowingly engaged in, is not now knowingly engaged in, distributed and will not engage in, distribute any dealings prospectus or transactions other offering material in connection with any Person, or in any country or territory, that at the time offering and sale of the dealing or transaction is or was the subject of SanctionsShares.
(a) None of the Selling Shareholder or its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (b) the Selling Shareholder and its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(v) The operations of the Selling Shareholder and its subsidiaries are and have been conducted at all times in material compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Selling Shareholder, threatened.
Appears in 1 contract
Samples: Underwriting Agreement (White Mountains Insurance Group LTD)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations underunder this Agreement, this Agreement will not contravene any provision of applicable law, or the certificate of incorporation formation or by-laws limited liability company agreement of the Selling Shareholder (if the Selling Shareholder is a corporation)Shareholder, or any material agreement or other instrument binding upon the Selling Shareholder or any material judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder except, in each case, where any such contravention would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereunderShareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Selling Shareholder of its obligations under this Agreement of the Selling ShareholderAgreement, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares, except where the failure to obtain such consent, approval, authorization or order of, or qualification with, any governmental body or agency would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereunder.
(c) The Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares to be sold by the such Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement Agreement, and to sell, transfer and deliver the Shares to be sold by the such Selling Shareholder or a security entitlement in respect of such Shares.
(d) [Reserved].
(e) Upon payment for the Shares to be sold by the 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 New York Uniform Commercial Code (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, the 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 certificate of incorporation, bylaws and applicable law, (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.
(fe) The Selling Shareholder is not prompted by has no knowledge of any information adverse business condition concerning the Company or its subsidiaries which that is not set forth in the Time of Sale Prospectus prompting it to sell its Shares pursuant to this Agreement.
(gf) (i) The Each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) the Registration StatementStatements, when it they respectively became effective, did not contain and, as amended or supplemented, if applicable, will not contain any 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, (iiiii) the Registration Statements and the Prospectus comply and, as amended or supplemented, if applicable, will comply in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder, (iv) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (v) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (iiivi) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that such the representations and warranties set forth in this subsection (gparagraph 2(f) apply only are limited to statements or omissions made in reliance upon and in conformity with Shareholder Information (defined below) information relating to the Selling Shareholder furnished to the Company in writing by or on behalf of the Selling Shareholder expressly for use in the Registration Statement, the ProspectusStatements, the Time of Sale Prospectus, the Prospectus and or any amendments or supplements thereto.
(g) (i) None of Neither the Selling Shareholder or nor any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea, Sudan Russia and Syria).
(ii) The Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past five 5 years, the Selling Shareholder has not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(a) None of the Selling Shareholder or its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (b) the Selling Shareholder and its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein herein; and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(v) The operations of the Selling Shareholder and its subsidiaries are and have been conducted at all times in material compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the best knowledge of the Selling Shareholder, threatened.
Appears in 1 contract
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement will not contravene any provision of applicable law, or the certificate of incorporation formation or by-laws limited liability company agreement of the Selling Shareholder (if the Selling Shareholder is a corporation)Shareholder, or any agreement or other instrument binding upon the Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder except, in each case, where any such contravention would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereunderShareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body body, agency or agency court is required for the performance by the Selling Shareholder of its obligations under this Agreement of the Selling ShareholderAgreement, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares, except where the failure to obtain such consent, approval, authorization or order of, or qualification with, any governmental body or agency would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereunder.
(c) The Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-8 501 of the New York Uniform Commercial Code in respect of, the Shares to be sold by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such Shares.
(d) [Reserved].
(e) Upon payment for the Shares to be sold by the 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 8-8 105 of the New York Uniform Commercial Code (the “UCC”)) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCCSxxxxxx 0 000 xx xxx XXX, (BX) under Section 8-8 501 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 8-8 102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, the 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 certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-8 102 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.
(e) The Selling Shareholder has delivered to the Representatives an executed lock-up agreement in substantially the form attached hereto as Exhibit A (the “Lock-up Agreement”).
(f) The Selling Shareholder has no reason to believe that the representations and warranties of the Company contained in Section 1 are not true and correct, is familiar with the Registration Statement, the Time of Sale Prospectus and the Prospectus and has no knowledge of any material fact, condition or information not disclosed in the Registration Statement, the Time of Sale Prospectus or the Prospectus that has had, or may have, a material adverse effect on the Company and its subsidiaries, taken as a whole. The Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Registration Statement, the Time of Sale Prospectus or the Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) The Each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) each part of the Registration Statement, when it such part became effective, did not contain andand each such part, as amended or supplemented, if applicable, will not contain any 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, (iiiii) the Registration Statement as of the date hereof does not contain any 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, (iv) the Registration Statement and the Prospectus comply, and as amended or supplemented, if applicable, will comply in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder, (iv) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 55 hereof), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (v) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (iiivi) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, provided not misleading; provided, that such the representations and warranties set forth in this subsection (g) apply only paragraph are limited solely to statements or omissions made in reliance upon and in conformity with Shareholder Information (defined below) information relating to the Selling Shareholder furnished in writing to the Company or the Representatives by or on behalf of the Selling Shareholder expressly for use in the Registration Statement, the Time of Sale Prospectus or the Prospectus, it being understood and agreed that the only information furnished in writing by the Selling Shareholder consists of the name of the Selling Shareholder, the number of offered shares and the address and other information with respect to the Selling Shareholder (excluding percentages) which appear in the Registration Statement or any Prospectus in the table (and corresponding footnotes) under the caption “Principal and Selling Shareholder” (the “Selling Shareholder Information”) and provided further that the representations and warranties set forth in this paragraph do not apply to statements or omissions in the Registration Statement, the Time of Sale Prospectus or the Prospectus based upon information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use therein it being understood and any amendments or supplements theretoagreed that the only such information is that as described in Section 10(c) hereof.
(i) None of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, subsidiaries or any director, officer, employee, agent, representative, or affiliate thereof, or, to the knowledge of the Selling Shareholder, any agent, affiliate or representative of the Selling Shareholder or any of its subsidiaries is a Person that is, or is owned or controlled by one or more Persons a Person that areis:
(A) the subject of any Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Crimea, Cuba, Iran, North KoreaKorea and Syria or in any other country or territory, Sudan and Syriathat, at the time of such funding, is the subject of Sanctions).
(ii) The Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions, except to the extent permitted for a Person required to comply with Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For Except as disclosed by the Company or the Selling Shareholder to the Representatives prior to the date hereof, which information is disclosed in the Time of Sale Prospectus, for the past five 5 years, the Selling Shareholder has and its subsidiaries have not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(aiv) None of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment or giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order “government official” to influence official action, action or to any person in violation of any applicable anti-corruption lawssecure an improper advantage; (b) and the Selling Shareholder and each of its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained maintain and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations representation and warranties warranty contained herein and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption lawsherein.
(v) The operations of the Selling Shareholder and its subsidiaries are and have been conducted at all times in material compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the best knowledge of the Selling Shareholder, threatened.
(i) The Selling Shareholder represents and warrants that it is not (i) an employee benefit plan subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), (ii) a plan or account subject to Section 4975 of the Internal Revenue Code of 1986, as amended or (iii) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R. 2510.3-101, or otherwise.
Appears in 1 contract
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement, the Custody Agreement signed by the Selling Shareholder and [•], as Custodian, relating to the deposit of the Shares to be sold by the Selling Shareholder (the “Custody Agreement”) and the Power of Attorney appointing certain individuals as the Selling Shareholder’s attorneys-in-fact to the extent set forth therein, relating to the transactions contemplated hereby and by the Registration Statement (the “Power of Attorney”) will not contravene any provision of applicable law, or the memorandum of association, articles of association, certificate of incorporation or incorporation, by-laws or similar governing documents of the Selling Shareholder (if the Selling Shareholder is a corporation)Shareholder, or any agreement or other instrument binding upon the Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder except, in each case, where any such contravention would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereunderShareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body body, agency or agency court is required for the performance by the Selling Shareholder of its obligations under this Agreement or the Custody Agreement or Power of Attorney of the Selling Shareholder, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares, except where the failure to obtain such consent, approval, authorization or order of, or qualification with, any governmental body or agency would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereunder.
(c) The Selling Shareholder has, and on the Closing Date will have, 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 to be sold by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement, the Custody Agreement and the Power of Attorney and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such the Shares.
(d) [Reserved]The Custody Agreement and the Power of Attorney have been duly authorized, executed and delivered by the Selling Shareholder and are valid and binding agreements of the Selling Shareholder.
(e) Upon payment for the Shares to be sold by the 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 New York Uniform Commercial Code (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, the 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 certificate of incorporation, bylaws and applicable law, (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.
(f) The Selling Shareholder has delivered to the Representatives an executed lock-up agreement in substantially the form attached hereto as Exhibit A.
(g) The Selling Shareholder has no reason to believe that the representations and warranties of the Company contained in Section 1 are not true and correct, is familiar with the Registration Statement, the Time of Sale Prospectus and the Prospectus and has no knowledge of any material fact, condition or information not disclosed in the Registration Statement, the Time of Sale Prospectus or the Prospectus that has had, or may have, a material adverse effect on the Company and its subsidiaries, taken as a whole. The Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Registration Statement, the Time of Sale Prospectus or the Prospectus to sell its Shares pursuant to this Agreement.
(gh) (i) The Each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) the Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any 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, (iiiii) the Registration Statement and the Prospectus comply and, as amended or supplemented, if applicable, will comply in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder, (iv) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (v) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (iiivi) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, provided not misleading, except that such the representations and warranties set forth in this subsection (gparagraph do not apply to statements or omissions in the Registration Statement, the Time of Sale Prospectus or the Prospectus based upon information relating to any Underwriter furnished to the Company in writing by such Underwriter through Xxxxxx Xxxxxxx & Co. LLC expressly for use therein; provided that the representations and warranties set forth in this paragraph 2(h) apply only are limited to statements or omissions made in reliance upon and in conformity with Shareholder Information (defined below) information relating to the Selling Shareholder furnished to the Company in writing by or on behalf of the Selling Shareholder expressly for use in the Registration Statement, the Time of Sale Prospectus, the Prospectus or any amendments or supplements thereto (the “Selling Shareholder Information”); it being understood that the Selling Shareholder Information shall be limited to the legal name and address of, and the number of shares beneficially owned and offered by, such Selling Shareholder, and the other information with respect to such Selling Shareholder that appears under the caption “Principal and Selling Stockholders” in the Registration Statement, the Time of Sale Prospectus Prospectus, and any amendments or supplements theretothe Prospectus.
(i) (i) None of the Selling Shareholder, any of its subsidiaries, or any director, officer, or employee thereof, or, to the Selling Shareholder’s knowledge, any agent, controlled affiliate or representative of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea, Sudan Syria, and Syriathe Donetsk People’s Republic and Luhansk People’s Republic located in Ukraine).
(ii) The Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past five years, the The Selling Shareholder has and each of its subsidiaries have not knowingly engaged in, is are not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(ai) None of the Selling Shareholder or any of its subsidiariessubsidiaries or affiliates, or, to the knowledge of the Selling Shareholder, or any director, officer, employeeor employee thereof, agentnor, representativeto the Selling Shareholder’s knowledge, any agent or affiliate thereof representative of the Selling Shareholder or of any of its subsidiaries or controlled affiliates, has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (bii) the Selling Shareholder and each of its subsidiaries have and each of its controlled affiliates has conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein herein; and (ciii) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(vk) The operations of the Selling Shareholder and each of its subsidiaries are and have been conducted at all times in material compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the best knowledge of the Selling Shareholder, threatened.
(l) The Selling Shareholder represents and warrants that it is not (i) an employee benefit plan subject to ERISA, (ii) a plan or account subject to the Code or (iii) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R. 2510.3-101, or otherwise.
(m) No stamp, documentary, issuance, registration, transfer, withholding, capital gains, income or other taxes or duties are payable by or on behalf of the Underwriters, the Company or any of its subsidiaries in the British Virgin Islands or to any taxing authority thereof or therein in connection with (i) the execution, delivery or consummation of this Agreement, (ii) the sale and delivery of the Shares to the Underwriters or purchasers procured by the Underwriters, or (iii) the resale and delivery of the Shares by the Underwriters in the manner contemplated herein.
(n) The Selling Shareholder has the power to submit, and pursuant to Section 19 has, to the extent permitted by law, legally, validly, effectively and irrevocably submitted, to the jurisdiction of the Specified Courts (as defined in Section 19), and has the power to designate, appoint and empower, and pursuant to Section 19, has legally, validly and effectively designated, appointed and empowered an agent for service of process in any suit or proceeding based on or arising under this Agreement in any of the Specified Courts.
Appears in 1 contract
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriters Underwriter that:
(a) Except for the free writing prospectuses, if any, identified in Schedule I hereto, and electronic road shows, if any, furnished to you before first use, the Selling Shareholder has not prepared, used or referred to, and will not, without your prior consent, prepare, use or refer to, any free writing prospectus.
(b) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(bc) The execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement will not contravene (i) any provision of applicable law, or (ii) the certificate of incorporation or by-laws of the Selling Shareholder (if the Selling Shareholder is a corporation)Shareholder, or (iii) any agreement or other instrument binding upon the Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder exceptShareholder, except for such contraventions in each case, where any such contravention the case of (i) and (iii) as would not reasonably be expected to have a material adverse effect on the ability of Company or its subsidiaries, taken as a whole, or on the Selling Shareholder Shareholder’s ability to perform its obligations hereunder, and no consummate the transactions contemplated hereby. No consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Selling Shareholder of its obligations under this Agreement of the Selling ShareholderAgreement, except (i) such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares, except where the failure to obtain such consent, approval, authorization or order of, or qualification with, any governmental body or agency Shares and (ii) as would not reasonably be expected to have a material adverse effect on the ability of Company or its subsidiaries, taken as a whole, or on the Selling Shareholder Shareholder’s ability to perform its obligations hereunderconsummate the transactions contemplated hereby.
(cd) The Selling Shareholder hasowns, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect ofown, the Shares to be sold by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and has, and on the Closing Date will have, the legal right and power, and all authorization authorizations and approval approvals required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such Shares.
(d) [Reserved]Shareholder.
(e) Upon payment for the Shares to be sold by the Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the UnderwritersUnderwriter, 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 the securities accounts account of the Underwriters Underwriter (assuming that neither DTC nor any such the Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (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 Underwriter 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 Underwriter with respect to such security entitlement; for purposes of this representation, the 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 certificate of incorporation, bylaws and applicable law, (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 account of the several Underwriters Underwriter on the records of DTC will have been made pursuant to the UCC.
(f) Upon payment for the Shares to be sold to the Underwriter by the Selling Shareholder pursuant to this Agreement, all right, title and interest in the Shares will be transferred to the Underwriter free and clear of all security interests, claims, liens, equities or other encumbrances.
(g) The Selling Shareholder has no knowledge that the representations and warranties of the Company and Copa Airlines contained in Section 1 are not true and correct, is familiar with the Registration Statement and Prospectus and has no knowledge of any untrue statement of material fact or omission to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. The Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which that is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement. The liability of the Selling Shareholder for a breach of the representations and warranties contained in this paragraph shall be limited to an amount equal to the aggregate Public Offering Price of the Shares sold by the Selling Shareholder under this Agreement.
(g) (i) The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any 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, (ii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (iii) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (iiiiv) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, provided not misleading, except that such the representations and warranties set forth in this subsection (gparagraph 2(h) apply only to statements or omissions made in reliance the Registration Statement, the Time of Sale Prospectus, any broadly available road show or the Prospectus based upon and in conformity with Shareholder Information (defined below) information relating to the Selling Shareholder that is furnished to the Company in writing by or on behalf of the Selling Shareholder expressly for use therein. The liability of the Selling Shareholder for a breach of representations and warranties contained in this paragraph shall be limited to an amount equal to the Registration Statement, aggregate Public Offering Price of the Prospectus, Shares sold by the Time of Sale Prospectus and any amendments or supplements theretoSelling Shareholder under this Agreement.
(i) None In order to document the Underwriter’s 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 the Underwriter prior to or at the Closing Date a properly completed and executed U.S. Treasury Department Form W-8 (or other applicable form or statement specified by the U.S. Treasury Department regulations in lieu thereof).
(j) Except as disclosed by the Selling Shareholder in writing to the Underwriter, neither the Selling Shareholder nor any of his, her or its subsidiariesaffiliates directly, oror indirectly through one or more intermediaries, to controls, or is controlled by, or is under common control with, or has any other association with (within the knowledge meaning of Article 1(q) of the By-laws of the Financial Industry Regulatory Authority, Inc. (the “FINRA”)), any member firm of the FINRA.
(k) This Agreement is in proper legal form under the laws of Panama for the enforcement thereof in Panama against the Selling Shareholder, and it is not necessary in order to ensure the legality, validity, enforcement or admissibility into evidence of this Agreement in Panama that this Agreement be filed or recorded with any directorcourt or other authority in Panama or that any tax or fee be paid in Panama on or in respect of this Agreement or any other document, officerother than court costs, employeeincluding (without limitation) filing fees, agentexcept that, representative, with respect to enforceability or affiliate thereof, is a Person that is, or is owned or controlled by one or more Persons that are:
admissibility into evidence (Ai) the subject signatures of any Sanctionsthe parties thereto signing outside Panama shall have been notarized by a notary public licensed as such under the law of the place of signing and the signature of such notary public shall have been legalized by the relevant Panamanian Consulate or by an apostille, or
and (Bii) located, organized or resident this Agreement shall have been translated into Spanish by a licensed translator in a country or territory that is the subject of Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea, Sudan and Syria)Panama.
(iil) The Selling Shareholder has the power to submit, and pursuant to Section 16 of this Agreement, has legally, validly, effectively and irrevocably submitted, to the jurisdiction of the courts of the State of New York and of the United States sitting in the Borough of Manhattan and has the power to designate, appoint and empower, and pursuant to Section 16 of this Agreement, has legally, validly and effectively designated, appointed and empowered an agent for service of process in any suit or proceeding arising out of or relating to this Agreement.
(m) The Selling Shareholder represents and covenants that it will not, directly or or, to its knowledge, indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) Person to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past five years, the Selling Shareholder has not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(a) None of the Selling Shareholder or its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (b) the Selling Shareholder and its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(v) The operations of the Selling Shareholder and its subsidiaries are and have been conducted at all times in material compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Selling Shareholder, threatened.
Appears in 1 contract
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriters Underwriter that:
(a) The Selling Shareholder now has, and on the Closing Date and any Option Closing Date will have, good and marketable title to the Shares to be sold by the Selling Shareholder, free and clear of any lien, claim, security interest or other encumbrance, including, without limitation, any restriction on transfer.
(b) The Selling Shareholder now has, and on the Closing Date and any Option Closing Date will have, full legal right, power and authorization, and any approval required by law, to sell, assign, transfer and deliver such Shares in the manner provided in this Agreement, and upon delivery of and payment for such Shares hereunder, the several Underwriters will acquire good and marketable title to such Shares free and clear of any lien, claim, security interest, or other encumbrance.
(c) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The execution Shareholder and delivery by is the Selling Shareholder of, valid and the performance by the Selling Shareholder of its obligations under, this Agreement will not contravene any provision of applicable law, or the certificate of incorporation or by-laws binding agreement of the Selling Shareholder (if enforceable against the Selling Shareholder is a corporation), in accordance with its terms.
(d) Neither the execution and delivery of this Agreement by or any agreement or other instrument binding upon the Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder except, in each case, where any such contravention would not reasonably be expected to have a material adverse effect on the ability behalf of the Selling Shareholder to perform its obligations hereunder, and no nor the consummation of the transactions herein or therein contemplated by or on behalf of the Selling Shareholder requires any consent, approval, authorization or order of, or qualification filing or registration with, any court, regulatory body, administrative agency or other governmental body body, agency or agency is required for the performance by the Selling Shareholder of its obligations under this Agreement of the Selling Shareholder, official (except such as may be required by under the Act or such as may be required under state securities or Blue Sky laws of governing the various states in connection with the offer purchase and sale distribution of the Shares, except where the failure to obtain such consent, approval, authorization ) or order conflicts or will conflict with or constitutes or will constitute a breach of, or qualification withdefault under, or violates or will violate, any governmental body agreement, indenture or agency would not reasonably be expected other instrument to have a material adverse effect on the ability of which the Selling Shareholder to perform its obligations hereunder.
(c) The Selling Shareholder has, and on the Closing Date will have, valid title to, is a party or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares to be sold by which the Selling Shareholder free and clear of all security interestsis or may be bound or to which the Selling Shareholder's property or assets is subject, claimsor any statute, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, rule, regulation, ruling, judgment, injunction, order or decree applicable to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect to any property or assets of such Shares.
(d) [Reserved]the Selling Shareholder.
(e) Upon payment for The Registration Statement and the Shares Prospectus, insofar as they relate to be sold by the Selling Shareholder pursuant to this AgreementShareholder, 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 do not 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 New York Uniform Commercial Code (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, the 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 certificate of incorporation, bylaws and applicable law, (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.
(f) The Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any an untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading, .
(iif) The Selling Shareholder does not have any actual knowledge or any reason to believe that the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when Registration Statement or the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any amendment or supplement thereto) contains any untrue statement of a material fact or omit omits to state a any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, therein not misleading and misleading.
(iiig) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, provided that such The representations and warranties set forth in this subsection (g) apply only to statements or omissions made in reliance upon and in conformity with Shareholder Information (defined below) relating to the Selling Shareholder furnished in writing by or on behalf of the Selling Shareholder expressly for use in this Agreement are, and on the Registration Statement, the Prospectus, the Time of Sale Prospectus Closing Date and any amendments or supplements theretoOption Closing Date will be, true and correct.
(i) None of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea, Sudan and Syria).
(iih) The Selling Shareholder will nothas not taken, directly or indirectly, use the proceeds any action designed to or that might reasonably be expected to cause or result in stabilization or manipulation of the offeringprice of the Ordinary Shares to facilitate the sale or resale of the Shares, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating except as described in the offering, whether as underwriter, advisor, investor or otherwise)Prospectus.
(iii) For the past five years, the Selling Shareholder has not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(a) None of the Selling Shareholder or its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (b) the Selling Shareholder and its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(v) The operations of the Selling Shareholder and its subsidiaries are and have been conducted at all times in material compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Selling Shareholder, threatened.
Appears in 1 contract
Representations and Warranties of the Selling Shareholder. The Selling Shareholder hereby represents and warrants to and agrees with each Underwriter as of the Underwriters thatdate hereof, as of the Firm Shares Closing Date, as follows:
(a) This Agreement has and the Lock-Up Agreement have each been duly authorized, executed and delivered by or on behalf of the Selling Shareholder, and, assuming due authorization, execution and delivery by the other parties thereto, this Agreement and the Lock-up Agreement each constitute the valid and legally binding agreement of the Selling Shareholder, enforceable against the Selling Shareholder in accordance with its terms, except as rights to indemnification under this Agreement may be limited by applicable law.
(b) The execution and delivery by the Selling Shareholder of, of this Agreement and the performance by the Selling Shareholder of its obligations underunder this Agreement, this Agreement including the sale and delivery of the Shares to be sold by the Selling Shareholder and the consummation of the transactions contemplated herein and compliance by the Selling Shareholder with its obligations hereunder, do not and will not not, whether with our without the giving of notice or the passage of time or both, (i) violate or contravene any provision of applicable law, statute, regulation, or the certificate of incorporation or by-laws of the Selling Shareholder (if the Selling Shareholder is a corporation), filing or any agreement or other instrument binding upon the Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder exceptShareholder, (ii) conflict with or constitute a breach of, or default under, or result in each casethe creation or imposition of any tax, where any such contravention would not reasonably lien, charge or encumbrance upon the shares to be expected to have a material adverse effect on the ability of sold by the Selling Shareholder pursuant to perform its obligations hereunder, and no the terms of any agreement or instrument to which the Selling Shareholder is a party or by which the Selling Shareholder may be bound or (iii) require any consent, approval, authorization or order of, of or qualification with, registration or filing with any court or governmental agency or body or agency is required for the performance by the Selling Shareholder of its obligations under this Agreement of the Selling Shareholderhaving jurisdiction over him, except such as may be required by the U.S. states or foreign securities or Blue Sky and blue sky laws of the various states in connection with the offer and sale of the Shares, except where the failure to obtain such consent, approval, authorization Shares which have been or order of, or qualification with, any governmental body or agency would not reasonably will be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereundereffected in accordance with this Agreement.
(c) The Selling Shareholder has, and on the Firm Shares Closing Date Date, will have, valid and marketable title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, to the Shares to be sold by the Selling Shareholder free and clear of all any lien, claim, security interests, claims, liens, equities interest or other encumbrances encumbrance, including, without limitation, any restriction on transfer, except as otherwise described in the Registration Statement and Prospectus.
(d) The Selling Shareholder has, and on the Firm Shares Closing Date, will have, full legal right and power, and all authorization and any approval required by lawlaw (except such as may be required under U.S. states or foreign securities and blue sky laws in connection with the purchase and distribution of the Shares by the several Underwriters), to enter into this Agreement and to sell, assign, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such Shares.
(d) [Reserved]the manner provided by this Agreement.
(e) Upon payment for Assuming that CIBC World Markets Corp. acquires security entitlements with respect to the financial asset consisting of the 175,000 Shares to be sold by the Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) deposited in or such other nominee as may be designated held 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 CIBC World Markets Corp. nor any such other Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”)) claims with respect to such Shares)financial asset, (A) DTC shall be a “protected purchaser” of such Shares within the meaning of an action based on an adverse claim under Section 8-303 of the Uniform Commercial Code as in effect on the date hereof in the State of New York (the “New York 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 financial asset, whether such action is framed in conversion, replevin, constructive trust, equitable lien, or other theory, may not be successfully asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, the 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 certificate of incorporation, bylaws and applicable law, (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 UCCCIBC World Markets Corp. nor any other Underwriter.
(f) The Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) The Registration StatementInformation is, when it became effectiveand on each Closing Date will be, did not contain andtrue, as amended or supplementedcorrect, if applicableand complete, will not contain any 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, (ii) the Time of Sale Prospectus and does not, and at the time of on each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state any material fact necessary to make such information not misleading.
(g) The Selling Shareholder has reviewed the Registration Statement, Prospectus and any Issuer Free Writing Prospectus and nothing has come to the attention of the Selling Shareholder that would lead the Selling Shareholder to believe that (i) on the Effective Date, the Registration Statement contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein in order to make the statements made therein not misleading, (ii) on the Effective Date the Prospectus contained and, on each Closing Date contains, no untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, misleading and (iii) as of the Applicable Time, neither the General Disclosure Package, nor any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading and (iii) misleading; provided, however, that the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, provided that such representations and warranties set forth in this subsection (g) apply only paragraph are limited to statements or omissions made in reliance based upon and in conformity with Shareholder Information (defined below) relating to the Selling Shareholder furnished Information.
(h) The sale of Shares by the Selling Shareholder pursuant to this Agreement is not prompted by the Selling Shareholder’s knowledge of any material information concerning the Company which is not set forth in writing the Prospectus.
(i) Assuming that none of the Underwriters is otherwise subject to taxation in Israel, no stamp or other issuance or transfer taxes or duties and no capital gains, income, withholding or other taxes are payable by or on behalf of the Underwriters to the State of Israel or to any political subdivision or taxing authority thereof or therein in connection with the sale and delivery by the Underwriters of the Shares to be sold by the Selling Shareholder expressly for use as contemplated in the Registration Statement, the Prospectus, the Time of Sale Prospectus and any amendments or supplements theretoAgreement.
(i) None of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea, Sudan and Syria).
(iij) The Selling Shareholder has not taken and will notnot take, directly or indirectly, use the proceeds any action designed to or that might reasonably be expected to cause or result in stabilization or manipulation of the offering, price of any security of the Company to facilitate the sale or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business resale of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise)Shares.
(iiik) For The Selling Shareholder does not have actual knowledge that any representation or warranty of the past five years, the Company set forth in Section 2 above is untrue or inaccurate in any material respect.
(l) The Selling Shareholder has not knowingly engaged in, is not now knowingly engaged in, prepared used or referred to and will not engage inprepare, use or refer to, any dealings or transactions with any Person, or “free writing prospectus” (as defined in any country or territory, that at the time Rule 405 of the dealing or transaction is or was Rules) other than the subject of SanctionsIssuer Free Writing Prospectuses identified on Schedule IV hereto.
(a) None of the Selling Shareholder or its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (b) the Selling Shareholder and its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(v) The operations of the Selling Shareholder and its subsidiaries are and have been conducted at all times in material compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Selling Shareholder, threatened.
Appears in 1 contract
Samples: Underwriting Agreement (RRSat Global Communications Network Ltd.)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder hereby represents and warrants to the Company and agrees with each of the Underwriters thatUnderwriter as follows:
(a) The Selling Shareholder has caused certificates for the number of Shares to be sold by the Selling Shareholder hereunder to be delivered to the Company (in such capacity, the "Custodian"), endorsed in blank or with blank stock powers duly executed, with a signature appropriately guaranteed, such certificates to be held in custody by the Custodian for delivery, pursuant to the provisions of this Agreement and an agreement dated on or about the date hereof between the Custodian and the Selling Shareholder (the "Custody Agreement").
(b) The Selling Shareholder has granted an irrevocable power of attorney (the "Power of Attorney") to the Company and Craxx Xxxxx, xn behalf of the Selling Shareholder, to execute and deliver this Agreement and any other document necessary or desirable in connection with the transactions contemplated hereby and to deliver the shares to be sold by the Selling Shareholder pursuant hereto.
(c) This Agreement, the Custody Agreement, the Power of Attorney and the Lock-Up Agreement has have each been duly authorized, executed and delivered by or on behalf of the Selling Shareholder and, assuming due authorization, execution and delivery by the other parties hereto, each constitutes the valid and legally binding agreement of the Selling Shareholder, enforceable against the Selling Shareholder in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights generally and by general equitable principals.
(bd) The execution and delivery by the Selling Shareholder of, of this Agreement and the performance by the Selling Shareholder of its obligations under, under this Agreement (i) will not contravene any provision of applicable law, statute, rule or the certificate of incorporation or by-laws of the Selling Shareholder (if the Selling Shareholder is a corporation), regulation or any agreement or other instrument binding upon the Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder exceptShareholder, in each case, where any such contravention would (ii) does not reasonably be expected to have a material adverse effect require on the ability part of the Selling Shareholder to perform its obligations hereunder, and no any consent, approval, authorization or order of, of or qualification with, registration or filing with any court or governmental agency or body or agency is required for the performance by the Selling Shareholder of its obligations under this Agreement of the Selling Shareholderhaving jurisdiction over it, except such as may be required by the securities or Blue Sky laws of the various states or other jurisdiction in connection with the offer and sale of the SharesShares which have been or will be effected in accordance with this Agreement, except where and (iii) will not result in the failure to obtain such consentcreation or imposition of any lien, approval, authorization charge or order of, encumbrance upon any property or qualification with, any governmental body or agency would not reasonably be expected to have a material adverse effect on the ability assets of the Selling Shareholder pursuant to perform its obligations hereunderthe terms of any agreement or instrument to which the Selling Shareholder is a party or by which the Selling Shareholder may be bound or to which any of the property or assets of the Selling Shareholder is subject.
(ce) The Selling Shareholder has, and on the each Closing Date on which Shares to be sold by the Selling Shareholder pursuant to this Agreement will have, valid and marketable title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, to the Shares to be sold by the Selling Shareholder on such Closing Date, free and clear of all any lien, claim, security interests, claims, liens, equities interest or other encumbrances encumbrance, including, without limitation, any restriction on transfer, except as otherwise described in the Registration Statement and the legal right and powerProspectus.
(f) The Selling Shareholder has, and all authorization on each Closing Date on which Shares to be sold by the Selling Shareholder pursuant to this Agreement will have, -13- 14 full legal right, power and authorization, and any approval required by law, to enter into this Agreement and to sell, assign, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement on such Closing Date in respect of such Sharesthe manner provided by this Agreement.
(d) [Reserved].
(eg) Upon delivery of and payment for the Shares to be sold by the Selling Shareholder on any Closing Date 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 New York Uniform Commercial Code (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 several Underwriters will acquire a receive 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, marketable title to such Shares may be asserted against the Underwriters with respect free and clear of any lien, claim, security interest or other encumbrance.
(h) All information relating to such security entitlement; for purposes of this representation, the Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered furnished in writing by the Selling Shareholder expressly for use in the name of Cede or another nominee designated Registration Statement and Prospectus is, and on each Closing Date on which Shares to be sold by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (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.
(f) The Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) The Registration StatementAgreement will be, when it became effectivetrue, did not contain andcorrect, as amended or supplementedand complete, if applicable, will not contain any 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, (ii) the Time of Sale Prospectus and does not, and at the time of on each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state any material fact necessary to make such information not misleading.
(i) The Selling Shareholder has reviewed the Registration Statement and Prospectus and, although the Selling Shareholder has not independently verified the accuracy or completeness of all the information contained therein, nothing has come to the attention of the Selling Shareholder that would lead the Selling Shareholder to believe that (i) on the Effective Date, the Registration Statement contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein in order to make the statements made therein not misleading and (ii) on the Effective Date, the Prospectus contained and, on each Closing Date contains, no untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, misleading.
(j) The sale of Shares by the Selling Shareholder pursuant to this Agreement is not misleading and (iii) prompted by the Prospectus does Selling Shareholder's knowledge of any material information concerning the Company or the Subsidiary which is not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, provided that such representations and warranties set forth in this subsection (g) apply only to statements or omissions made in reliance upon and in conformity with Shareholder Information (defined below) relating to the Selling Shareholder furnished in writing by or on behalf of the Selling Shareholder expressly for use in the Registration Statement, the Prospectus, the Time of Sale Prospectus and any amendments or supplements thereto.
(i) None of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea, Sudan and Syria).
(iik) The Selling Shareholder has not taken and will notnot take, directly or indirectly, use the proceeds any action designed to or that might reasonably be expected to cause or result in stabilization or manipulation of the offering, price of any security of the Company to facilitate the sale or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business resale of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise)Shares.
(iiil) For the past five years, the The Selling Shareholder has not knowingly engaged in, no actual knowledge that any representation or warranty of the Company set forth in Section 4 above is not now knowingly engaged in, and will not engage in, any dealings untrue or transactions with any Person, or inaccurate in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.material respect. -14- 15
(am) None The representations and warranties of the Selling Shareholder or its subsidiariesin the Custody Agreement are, or, and on each Closing Date on which Shares to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (b) be sold by the Selling Shareholder pursuant to this Agreement will be, true and its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption lawscorrect.
(v) The operations of the Selling Shareholder and its subsidiaries are and have been conducted at all times in material compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Selling Shareholder, threatened.
Appears in 1 contract
Samples: Underwriting Agreement (Talx Corp)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement and the Letter of Transmittal and Custody Agreement signed by the Selling Shareholder and First Union National Bank Corporate Trust, as Custodian, relating to the deposit of the Shares to be sold by the Selling Shareholder (the "Custody Agreement") and the consummation of the transactions contemplated thereby will not contravene any provision of applicable law, or the certificate Last Will and Testament of incorporation or by-laws of Xxxxxx X. xxXxxx, by which the Selling Shareholder (if the Selling Shareholder is a corporation)was established, or any agreement or other instrument binding upon the Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder except, in each case, where any such contravention would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereunderShareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Selling Shareholder of its obligations under this Agreement of or the Selling ShareholderCustody Agreement, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares, except where the failure to obtain such consent, approval, authorization or order of, or qualification with, any governmental body or agency would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereunder.
(c) The Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “"security entitlement” " within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares to be sold by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and the Custody Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such Shares.
(d) [Reserved]The Custody Agreement has been duly authorized, executed and delivered by the Selling Shareholder and is a valid and binding agreement of the Selling Shareholder.
(e) Upon payment for Delivery of the Shares to be sold by the Selling Shareholder and payment therefor pursuant to this Agreement, delivery of Agreement will pass valid title to 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 free 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 clear of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (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 UCCNew York Uniform Commercial Code, to each Underwriter who has purchased such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes without notice of this representation, the 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 certificate of incorporation, bylaws and applicable law, (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 UCCan adverse claim.
(f) The Selling Shareholder has not taken and will not take, directly or indirectly, any action which is not prompted by designed to or which has constituted or which might reasonably be expected to cause or result in the stabilization or manipulation of the price of any information concerning security of the Company to facilitate the sale or its subsidiaries which is not set forth in resale of the Time of Sale Prospectus to sell its Shares pursuant to this AgreementShares.
(g) (i) The To the best of the knowledge of the Selling Shareholder, after due inquiry, the Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any 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, (ii) the Time of Sale Prospectus does not, Registration Statement and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectuscomply and, as then amended or supplemented by the Companysupplemented, if applicable, will not, contain any untrue statement of a comply in all material fact or omit to state a material fact necessary to make respects with the statements therein, in Securities Act and the light applicable rules and regulations of the circumstances under which they were made, not misleading Commission thereunder and (iii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, provided not misleading, except that such the representations and warranties set forth in this subsection (gparagraph 2(g) do not apply only to statements or omissions made in reliance the Registration Statement or the Prospectus based upon and in conformity with Shareholder Information (defined below) information relating to any Underwriter furnished to the Selling Shareholder furnished Company in writing by or on behalf of the Selling Shareholder such Underwriter through you expressly for use in the Registration Statement, the Prospectus, the Time of Sale Prospectus and any amendments or supplements theretotherein.
(ih) None the statements in the Prospectus under the captions "Summary--Xxxxxx X. xxXxxx Testamentary Trust", "Xxxxxx X. xxXxxx Testamentary Trust," and "Selling Shareholder" insofar as such statements constitute summaries of the Selling Shareholder legal matters, documents or any of its subsidiariesproceedings referred to therein, or, to fairly present the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea, Sudan and Syria).
(ii) The Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past five years, the Selling Shareholder has not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(a) None of the Selling Shareholder or its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (b) the Selling Shareholder and its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(v) The operations of the Selling Shareholder and its subsidiaries are and have been conducted at all times in material compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries information called for with respect to such legal matters, documents and proceedings and fairly summarize the Anti-Money Laundering Laws is pending or, matters referred to the knowledge of the Selling Shareholder, threatenedtherein.
Appears in 1 contract
Samples: Underwriting Agreement (Dupont Alfred I Testamentary Trust)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement, the Custody Agreement signed by the Selling Shareholder and ____________, as Custodian, relating to the deposit of the Shares to be sold by the Selling Shareholder (the "Custody Agreement") and the Power of Attorney appointing certain individuals as the Selling Shareholder's attorneys-in-fact to the extent set forth therein, relating to the transactions contemplated hereby and by the Registration Statement (the "Power of Attorney") will not contravene any provision of applicable law, or the certificate of incorporation or by-laws of the Selling Shareholder (if the Selling Shareholder is a corporation), or any agreement or other instrument binding upon the Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder except, in each case, where any such contravention would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereunderShareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Selling Shareholder of its his obligations under this Agreement or the Custody Agreement or Power of Attorney of the Selling Shareholder, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares, except where the failure to obtain such consent, approval, authorization or order of, or qualification with, any governmental body or agency would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereunder.
(c) The Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, to the Shares to be sold by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement, the Custody Agreement and the Power of Attorney and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such SharesShareholder.
(d) [Reserved]The Custody Agreement and the Power of Attorney have been duly authorized, executed and delivered by the Selling Shareholder and are valid and binding agreements of the Selling Shareholder.
(e) Upon payment for Delivery of the Shares to be sold by the 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 New York Uniform Commercial Code (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 Agreement 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, pass title to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, the Selling Shareholder may assume that when such payment, delivery free 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 certificate of incorporation, bylaws and applicable law, (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.
(f) The Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any 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, (ii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (iii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, provided that such representations and warranties set forth in this subsection (g) apply only to statements or omissions made in reliance upon and in conformity with Shareholder Information (defined below) relating to the Selling Shareholder furnished in writing by or on behalf of the Selling Shareholder expressly for use in the Registration Statement, the Prospectus, the Time of Sale Prospectus and any amendments or supplements thereto.
(i) None of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject clear of any Sanctionssecurity interests, or
(B) locatedclaims, organized or resident in a country or territory that is the subject of Sanctions (includingliens, without limitation, Crimea, Cuba, Iran, North Korea, Sudan equities and Syria)other encumbrances.
(ii) The Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past five years, the Selling Shareholder has not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(a) None of the Selling Shareholder or its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (b) the Selling Shareholder and its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(v) The operations of the Selling Shareholder and its subsidiaries are and have been conducted at all times in material compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Selling Shareholder, threatened.
Appears in 1 contract
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to to, and agrees with with, each of the Underwriters that:
(ai) The Selling Shareholder has received and is familiar with the Prospectus and the Registration Statement as originally filed with the Commission and each Prospectus and has no knowledge of any material fact, condition or information not disclosed in any such Prospectus (preliminary or other) and the Registration Statement which has or could have a Material Adverse Effect on the Company; the Selling Shareholder is not prompted to sell the Optional Shares by any information concerning the Company which is not set forth in each such Prospectus and the Registration Statement; and to the best knowledge of the Selling Shareholder, the representations and warranties of the Company contained in Section 2(a) hereof are true and correct.
(ii) The Selling Shareholder has the legal capacity to enter into this Agreement and the full right, power and authority to consummate the transactions provided for hereby, and perform his obligations as provided. This Agreement has been duly authorized, executed and delivered by or on behalf the Selling Shareholder, and constitutes the valid, legal and binding agreement of the Selling Shareholder, enforceable against the Selling Shareholder in accordance with its terms (except as such enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application relating to or affecting the enforcement of creditors' rights and the application of equitable principles relating to the availability of remedies, and except as rights to indemnity or contribution may be limited by federal or state securities laws and the public policy of such laws).
(biii) The execution and delivery No consent, authorization, approval, order, registration, license, certificate, declaration or permit of or from, or filing with any court, regulatory body, administrative agency or other governmental body is required for the sale of the Optional Shares by the Selling Shareholder ofor the execution, and the delivery or performance by the Selling Shareholder of its obligations underthis Agreement, except for the registration under the Act of the Shares and the registration of the Stock under the Exchange Act, each of which has been made or obtained, 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, such approval as may be required from the NNM to have the Shares listed thereon, such approval as may be required by the NASD in connection with the terms and conditions set forth in this Agreement.
(iv) The execution and delivery of this Agreement will not contravene any provision of applicable law, or the certificate of incorporation or by-laws of by the Selling Shareholder and the consummation, by the Selling Shareholder, of the transactions contemplated hereby will not (if A) result in a breach or constitute a default under any material agreement or instrument or any decree, judgment or order to which the Selling Shareholder is a corporation)party or by which the Selling Shareholder may be bound or to which any of the properties or assets of the Selling Shareholder are or may be subject or (B) violate any law, rule or any agreement or other instrument binding upon regulation applicable to the Selling Shareholder or any judgment, order to which his properties or decree of any governmental body, agency assets are or court having jurisdiction over the Selling Shareholder except, in each case, where any such contravention would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereunder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Selling Shareholder of its obligations under this Agreement of the Selling Shareholder, except such as may be required by subject (other than for the securities or Blue Sky laws of the various states in connection and the rules and regulations of the NASD and assuming compliance with the offer and sale of federal securities laws by the Shares, except where the failure to obtain such consent, approval, authorization or order of, or qualification with, any governmental body or agency would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereunderother parties hereto).
(cv) The Selling Shareholder hashas and will, and on just prior to the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 closing of the New York Uniform Commercial Code in respect of, the Shares to be sold transactions contemplated by the Selling Shareholder Agreement, have good and marketable title to the Optional Shares, free and clear of all any pledge, lien, security interestsinterest, claimscharge, liensclaim equity or encumbrance of any kind, equities or other encumbrances than pursuant to this Agreement. The Selling Shareholder has full right, power and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and authority to sell, transfer and deliver the Optional Shares pursuant to be sold the Agreement and upon delivery of such Optional Shares and payment of the purchase price therefor as contemplated by this Agreement, each of the Underwriters will receive good and marketable title to the Optional Shares purchased by it from the Selling Shareholder, free and clear of any pledge, lien, security interest, charge, claim, equity or encumbrance of any kind. Except as created hereby, there are no outstanding options, warrants, rights or other agreements or arrangements requiring the Selling Shareholder at any time to transfer any of the Optional Shares.
(vi) For a period of one hundred eighty (180) calendar days after the date hereof, the Selling Shareholder will not, without the prior written consent of the Representatives, directly or indirectly, offer to sell, sell, grant any option for the sale of, or otherwise dispose of, any shares of Stock or any securities convertible into or exercisable for shares of Stock owned by the Selling Shareholder or a security entitlement in with respect of such Shares.
(d) [Reserved].
(e) Upon payment for the Shares to be sold by which the Selling Shareholder pursuant has the power of disposition, other than 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 New York Uniform Commercial Code (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, the 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 certificate of incorporation, bylaws and applicable law, (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.
(f) The Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(gvii) Certificates in negotiable form for all Optional Shares have been placed in custody with the Company for the purpose of effecting delivery hereunder.
(iviii) The Selling Shareholder will not take, directly or indirectly, any action designed to, or that might be reasonably expected to, cause or result in stabilization or manipulation of the price of the Stock; and the Selling Shareholder has not distributed and will not distribute any prospectus or other offering material in connection with the offering and sale of the Shares other than any Preliminary Prospectus filed with the Commission or the Prospectuses or other material permitted by the Act or the Rules and Regulations.
(ix) Neither the Registration Statement, when it became effective, did not contain andStatement nor any amendment thereto, as amended of the applicable effective date or supplementeddates, if applicable, and neither the Prospectus nor any amendment or supplement thereto contains or will not contain any an untrue statement of a material fact regarding the Selling Shareholder or omit to state a material fact regarding the Selling Shareholder required to be stated therein or necessary to make the statements therein not misleading, (ii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (iii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, provided that such representations and warranties set forth in this subsection (g) apply only to statements or omissions made in reliance upon and in conformity with Shareholder Information (defined below) relating to the Selling Shareholder furnished in writing by or on behalf of the Selling Shareholder expressly for use in the Registration Statement, the Prospectus, the Time of Sale Prospectus and any amendments or supplements thereto.
(i) None of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea, Sudan and Syria).
(ii) The Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past five years, the Selling Shareholder has not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(a) None of the Selling Shareholder or its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (b) the Selling Shareholder and its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(v) The operations of the Selling Shareholder and its subsidiaries are and have been conducted at all times in material compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Selling Shareholder, threatened.
Appears in 1 contract
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriters Underwriter that:
(a) The Selling Shareholder now has, and on the Closing Date and any Option Closing Date will have, good and marketable title to the Shares to be sold by the Selling Shareholder, free and clear of any lien, claim, security interest or other encumbrance, including, without limitation, any restriction on transfer.
(b) The Selling Shareholder now has, and on the Closing Date and any Option Closing Date will have, full legal right, power and authorization, and any approval required by law, to sell, assign, transfer and deliver such Shares in the manner provided in this Agreement, and upon delivery of and payment for such Shares hereunder, the several Underwriters will acquire good and marketable title to such Shares free and clear of any lien, claim, security interest, or other encumbrance.
(c) This Agreement between the Selling Shareholder and the Company relating to the Ordinary Shares has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The execution Shareholder and delivery by is the Selling Shareholder of, valid and the performance by the Selling Shareholder of its obligations under, this Agreement will not contravene any provision of applicable law, or the certificate of incorporation or by-laws binding agreement of the Selling Shareholder (if enforceable against the Selling Shareholder is a corporation), in accordance with its terms.
(d) Neither the execution and delivery of this Agreement by or any agreement or other instrument binding upon the Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder except, in each case, where any such contravention would not reasonably be expected to have a material adverse effect on the ability behalf of the Selling Shareholder to perform its obligations hereunder, and no nor the consummation of the transactions herein or therein contemplated by or on behalf of the Selling Shareholder requires any consent, approval, authorization or order of, or qualification filing or registration with, any court, regulatory body, administrative agency or other governmental body body, agency or agency is required for the performance by the Selling Shareholder of its obligations under this Agreement of the Selling Shareholder, official (except such as may be required by under the Act or such as may be required under state securities or Blue Sky laws of governing the various states in connection with the offer purchase and sale distribution of the Shares, except where the failure to obtain such consent, approval, authorization ) or order conflicts or will conflict with or constitutes or will constitute a breach of, or qualification withdefault under, or violates or will violate, any governmental body agreement, indenture or agency would not reasonably be expected other instrument to have a material adverse effect on the ability of which the Selling Shareholder to perform its obligations hereunder.
(c) The Selling Shareholder has, and on the Closing Date will have, valid title to, is a party or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares to be sold by which the Selling Shareholder free and clear of all security interestsis or may be bound or to which the Selling Shareholder's property or assets is subject, claimsor any statute, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, rule, regulation, ruling, judgment, injunction, order or decree applicable to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect to any property or assets of such Shares.
(d) [Reserved]the Selling Shareholder.
(e) Upon payment for The Registration Statement and the Shares Prospectus, insofar as they relate to be sold by the Selling Shareholder pursuant to this AgreementShareholder, 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 do not 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 New York Uniform Commercial Code (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, the 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 certificate of incorporation, bylaws and applicable law, (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.
(f) The Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any an untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading, .
(iif) The Selling Shareholder does not have any actual knowledge or any reason to believe that the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when Registration Statement or the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any amendment or supplement thereto) contains any untrue statement of a material fact or omit omits to state a any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, therein not misleading and misleading.
(iiig) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, provided that such The representations and warranties set forth in this subsection (g) apply only to statements or omissions made in reliance upon and in conformity with Shareholder Information (defined below) relating to the Selling Shareholder furnished in writing by or on behalf of the Selling Shareholder expressly for use in this Agreement are, and on the Registration Statement, the Prospectus, the Time of Sale Prospectus Closing Date and any amendments or supplements theretoOption Closing Date will be, true and correct.
(i) None of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea, Sudan and Syria).
(iih) The Selling Shareholder will nothas not taken, directly or indirectly, use the proceeds any action designed to or that might reasonably be expected to cause or result in stabilization or manipulation of the offeringprice of the Ordinary Shares to facilitate the sale or resale of the Shares, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating except as described in the offering, whether as underwriter, advisor, investor or otherwise)Prospectus.
(iii) For the past five years, the Selling Shareholder has not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(a) None of the Selling Shareholder or its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (b) the Selling Shareholder and its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(v) The operations of the Selling Shareholder and its subsidiaries are and have been conducted at all times in material compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Selling Shareholder, threatened.
Appears in 1 contract
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the such Selling Shareholder.
(b) The execution and delivery by the such Selling Shareholder of, and the performance by the such Selling Shareholder of its his obligations under, this Agreement, the Custody Agreement signed by such Selling Shareholder and Normxx X. Xxxxxxx, xx Custodian, relating to the deposit of the Shares to be sold by such Selling Shareholder (the "CUSTODY AGREEMENT") and the Power of Attorney appointing certain individuals as such Selling Shareholder's attorneys-in-fact to the extent set forth therein, relating to the transactions contemplated hereby and by the Registration Statement (the "POWER OF ATTORNEY") will not contravene any provision of applicable law, or the certificate of incorporation or by-laws of the Selling Shareholder (if the Selling Shareholder is a corporation), law or any agreement or other instrument binding upon the such Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the such Selling Shareholder except, in each case, where any such contravention would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereunderShareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the such Selling Shareholder of its his obligations under this Agreement or the Custody Agreement or Power of the Attorney of such Selling Shareholder, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares, except where the failure to obtain such consent, approval, authorization or order of, or qualification with, any governmental body or agency would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereunder.
(c) The Such Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, to the Shares to be sold by the such Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement, the Custody Agreement and the Power of Attorney and to sell, transfer and deliver the Shares to be sold by the such Selling Shareholder or a security entitlement in respect of such SharesShareholder.
(d) [Reserved]The Shares to be sold by such Selling Shareholder pursuant to this Agreement have been duly authorized and are validly issued, fully paid and non-assessable.
(e) Upon payment for The Custody Agreement and the Power of Attorney have been duly authorized, executed and delivered by such Selling Shareholder and are valid and binding agreements of such Selling Shareholder.
(f) Delivery of the Shares to be sold by the 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 New York Uniform Commercial Code (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 Agreement 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, pass title to such Shares may be asserted against the Underwriters with respect to such free and clear of any security entitlement; for purposes of this representationinterests, the Selling Shareholder may assume that when such paymentclaims, delivery liens, equities 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 certificate of incorporation, bylaws and applicable law, (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.
(f) The Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreementother encumbrances.
(g) (i) The All information furnished by or on behalf of the Selling Shareholder for use in the Registration StatementStatement or Prospectus is, when it became effectiveand on the Closing Date will be, did not contain andtrue, as amended or supplemented, if applicable, will not contain any 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, (ii) the Time of Sale Prospectus correct and complete and does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at on the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, date will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements thereinsuch information, in the light of the circumstances under which they were madeit was provided, not misleading and (iii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, provided that such representations and warranties set forth in this subsection (g) apply only to statements or omissions made in reliance upon and in conformity with Shareholder Information (defined below) relating to the Selling Shareholder furnished in writing by or on behalf of the Selling Shareholder expressly for use in the Registration Statement, the Prospectus, the Time of Sale Prospectus and any amendments or supplements theretomisleading.
(i) None of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea, Sudan and Syria).
(ii) The Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past five years, the Selling Shareholder has not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(a) None of the Selling Shareholder or its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (b) the Selling Shareholder and its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(v) The operations of the Selling Shareholder and its subsidiaries are and have been conducted at all times in material compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Selling Shareholder, threatened.
Appears in 1 contract
Samples: Underwriting Agreement (Emmis Broadcasting Corporation)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to to, and agrees with with, each of the Underwriters Selling Agents that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf the Selling Shareholder, and assuming due execution by the Company and the Selling Agents, constitutes the valid and binding agreement of the Selling Shareholder, enforceable against the Selling Shareholder in accordance with its terms, subject, as to enforcement, to applicable bankruptcy, insolvency, reorganization and moratorium laws and other laws relating to or affecting the enforcement of creditors' rights generally and to general equitable principles and except as the enforcement of rights to indemnity and contribution under this Agreement may be limited under applicable securities laws or the public policy underlying such laws.
(b) The execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement will not contravene (with or without the giving of notice or the passage of time or both) (i) conflict with any term or provision of applicable law, or the certificate Selling Shareholder's articles of incorporation or by-laws bylaws or other organizational documents, as amended, (ii) result in a breach or violation of any of the Selling Shareholder (if terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which the Selling Shareholder is a corporation)party or to which its properties or assets is subject or (iii) conflict with or violate any law, statute, rule or regulation or any agreement or other instrument binding upon the Selling Shareholder or any judgmentorder, order judgment or decree of any court or governmental body, agency or court body having jurisdiction over the Selling Shareholder except, in each case, where or any such contravention would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereunder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Selling Shareholder of its obligations under this Agreement of the Selling Shareholder, except such as may be required by the securities 's properties or Blue Sky laws of the various states in connection with the offer and sale of the Shares, except where the failure to obtain such consent, approval, authorization or order of, or qualification with, any governmental body or agency would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereunderassets.
(c) The Selling Shareholder has, and on the Closing Date Time of Delivery (as hereinafter defined) will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, to the Shares to be sold by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such Shares.
(d) [Reserved]When duly delivered against payment therefor as contemplated by this Agreement, the Shares will be validly issued, fully paid and nonassessable.
(e) Upon payment for Delivery of the Shares to be sold by the 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 New York Uniform Commercial Code (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 Agreement 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, the 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 certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries pass title to the accounts Shares free and clear of the several Underwriters on the records of DTC will have been made pursuant to the UCCall liens, security interests, pledges, charges, equities and other encumbrances.
(f) The Selling Shareholder is does not prompted require any consent, approval, authorization, order or declaration of or from, or registration, qualification or filing with, any court or governmental agency or body in connection with the sale of the Shares or the consummation of the transactions contemplated by any information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement, except for the registration of the Shares under the Act and such as may be required by the NASD or under state securities or blue sky laws in connection with the offer and sale of the Shares by the Selling Agents.
(g) The Selling Shareholder has not (i) The taken, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares or (ii) since the filing of the Registration StatementStatement (A) sold, when it became bid for, purchased or paid anyone any compensation for soliciting purchases of, the Shares or (B) paid or agreed to pay to any person any compensation for soliciting another to purchase any other securities of the Company.
(h) When the Registration Statement or any amendment thereto was or is declared effective, and at the Time of Delivery, it, to the best of the knowledge of the Selling Shareholder, did not contain and, as amended or supplemented, if applicable, and will not contain include any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading. When the Prospectus or any amendment or supplement thereto is filed with the Commission pursuant to Rule 424(b) (or, (iiif the Prospectus or such amendment or supplement is not required to be so filed, when the Registration Statement or the amendment thereto containing such amendment or supplement to the Prospectus was or is declared effective) and at the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5)Delivery, the Time of Sale Prospectus, as then amended or supplemented by at any such time, to the Companybest of the knowledge of the Selling Shareholder, if applicable, did not and will not, contain not include any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading and misleading. The foregoing provisions of this paragraph (iiii) the Prospectus does do not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, provided that such representations and warranties set forth in this subsection (g) apply only to statements or omissions made in the Registration Statement or any amendment thereto or the Prospectus or any amendment or supplement thereto in reliance upon and in conformity with Shareholder Information (defined below) relating written information furnished to the Company by either Selling Shareholder Agent specifically for use therein. It is understood that the statements set forth in the Registration Statement or any amendment thereto or the Prospectus or any amendment or supplement thereto (X) in the second sentence of the second paragraph of the cover page of the Prospectus, and (Y) in the first sentence of the first paragraph of the section entitled "Plan of Distribution," constitute the only written information furnished in writing to the Company by or on behalf of the either Selling Shareholder expressly Agent specifically for use in the Registration Statement, Statement or any amendment thereto or the Prospectus, the Time of Sale Prospectus and any amendments amendment or supplements supplement thereto, as the case may be.
(i) None of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea, Sudan and Syria).
(ii) The Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past five years, the Selling Shareholder has not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(a) None of the Selling Shareholder or its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (b) the Selling Shareholder and its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(v) The operations of the Selling Shareholder and its subsidiaries are and have been conducted at all times in material compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Selling Shareholder, threatened.
Appears in 1 contract
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, under this Agreement will not contravene any provision of applicable law, or the certificate of incorporation or by-laws of the Selling Shareholder (if the Selling Shareholder is a corporation), or any agreement or other instrument binding upon the Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder except, in each case, where any such contravention would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereunderShareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Selling Shareholder of its obligations under this Agreement of the Selling ShareholderAgreement, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares, except where the failure to obtain such consent, approval, authorization or order of, or qualification with, any governmental body or agency would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereunder.
(c) The Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares to be sold by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such Shares.
(d) [Reserved].
(e) Upon payment for the Shares to be sold by the 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 New York Uniform Commercial Code (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, the Selling Shareholder may assume that when such payment, delivery and crediting occur, 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 certificate of incorporation, bylaws and applicable law, (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.
(e) The Shares to be sold by the Selling Shareholder pursuant to this Agreement have been placed in custody, for delivery pursuant to the terms of this Agreement, under a Custody Agreement duly authorized, executed and delivered by the Selling Shareholder in the form heretofore furnished to you (the “Custody Agreement”) with Computershare Inc., as custodian (the “Custodian”); the Shares so held in custody for the Selling Shareholder are subject to the interests hereunder of the Underwriters.
(f) The Selling Shareholder has no reason to believe that the representations and warranties of the Company contained in Section 1 of this Agreement and of the Adviser contained in Sections 1 and 2 of this Agreement are not true and correct, is familiar with the Registration Statement, the Time of Sale Prospectus and the Prospectus and has no knowledge of any material fact, condition or information not disclosed in the Time of Sale Prospectus or the Prospectus that has had, or reasonably may be expected to have, a material adverse effect on the Company and its subsidiaries, taken as a whole. The Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any 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, (ii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 56), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (iii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that such the representations and warranties and any agreements set forth in this subsection (gparagraph 3(g) apply only are limited to statements or omissions made in reliance upon and in conformity with Shareholder Information (defined below) information relating to the Selling Shareholder furnished to the Company in writing by or on behalf of the Selling Shareholder Stockholder expressly for use in the Registration Statement, the Time of Sale Prospectus, the Time of Sale Prospectus and or any amendments or supplements thereto.
(i) None of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea, Sudan and Syria).
(ii) The Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past five years, the Selling Shareholder has not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(a) None of the Selling Shareholder or its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (b) the Selling Shareholder and its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(v) The operations of the Selling Shareholder and its subsidiaries are and have been conducted at all times in material compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Selling Shareholder, threatened.
Appears in 1 contract
Samples: Underwriting Agreement (Horizon Technology Finance Corp)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement, the Custody Agreement signed by the Selling Shareholder and ____________, as Custodian, relating to the deposit of the Shares to be sold by the Selling Shareholder (the "CUSTODY AGREEMENT") and the Power of Attorney appointing certain individuals as the Selling Shareholder's attorneys-in-fact to the extent set forth therein, relating to the transactions contemplated hereby and by the Registration Statement (the "POWER OF ATTORNEY") will not contravene any provision of applicable law, or the certificate of incorporation or by-laws of the Selling Shareholder (if the Selling Shareholder is a corporation)Shareholder, or any agreement or other instrument binding upon the Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder except, in each case, where any such contravention would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereunderShareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Selling Shareholder of its obligations under this Agreement or the Custody Agreement or Power of Attorney of the Selling Shareholder, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares, except where the failure to obtain such consent, approval, authorization or order of, or qualification with, any governmental body or agency would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereunder.
(c) The Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, to the Shares to be sold by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement, the Custody 8 8 Agreement and the Power of Attorney and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such SharesShareholder.
(d) [Reserved]The Custody Agreement and the Power of Attorney have been duly authorized, executed and delivered by the Selling Shareholder and are valid and binding agreements of the Selling Shareholder.
(e) Upon payment for delivery of the Shares to be sold by the 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 several Underwriters will acquire 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 free of any adverse claim thereto (within the meaning of Section 8-105 of the New York Uniform Commercial Code (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, the 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 certificate of incorporation, bylaws and applicable law, (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).
(f) The information under the caption "The Selling Shareholder" as well as any other information provided by the Selling Shareholder is not prompted by any information concerning to the Company or its subsidiaries which is not set forth the Underwriters in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(g) writing expressly for use in (i) The the Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any 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 (ii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (iii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, provided not misleading, except, that such the representations and warranties set forth in this subsection (gparagraph 2(g) do not apply only to statements or omissions made in reliance the Registration Statement or the Prospectus based upon and in conformity with Shareholder Information (defined below) information relating to any Underwriter furnished to the Selling Shareholder furnished Company in writing by or on behalf of the Selling Shareholder such Underwriter through you expressly for use in the Registration Statement, the Prospectus, the Time of Sale Prospectus and any amendments or supplements theretotherein.
(i) None of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea, Sudan and Syria).
(ii) The Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past five years, the Selling Shareholder has not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(a) None of the Selling Shareholder or its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (b) the Selling Shareholder and its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(v) The operations of the Selling Shareholder and its subsidiaries are and have been conducted at all times in material compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Selling Shareholder, threatened.
Appears in 1 contract
Samples: Underwriting Agreement (Renaissancere Holdings LTD)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement will not contravene any provision of applicable law, or the certificate of incorporation formation or by-laws formation agreement of the Selling Shareholder (if the Selling Shareholder is a corporation)Shareholder, or any agreement or other instrument binding upon the Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder except, in each case, where any such contravention would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereunderShareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Selling Shareholder of its obligations under this Agreement of Agreement, except (i) which would not have a material adverse effect on the Selling Shareholder, except 's ability to perform its obligations under this Agreement or (ii) such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares, except where the failure to obtain such consent, approval, authorization or order of, or qualification with, any governmental body or agency would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereunder.
(c) The On the Option Closing Date (as defined below) the Selling Shareholder has, and on the Closing Date will have, have valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, to the Shares to be sold by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such SharesShareholder.
(d) [Reserved].
(e) Upon payment for The delivery of the Shares to be sold by the Selling Shareholder pursuant to this AgreementAgreement will, upon the 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 and payment for 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 New York Uniform Commercial Code (the “UCC”)) to such Shares)as contemplated herein, (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, pass title to such Shares may be asserted against to the Underwriters with respect to such free and clear of any security entitlement; for purposes of this representationinterests, the Selling Shareholder may assume that when such paymentclaims, delivery liens, equities 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 certificate of incorporation, bylaws and applicable law, (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 UCCother encumbrances.
(fe) The All information under the captions "Principal and Selling Stockholders" and "Risk Factors--Shares Eligible for Future Sale" furnished by or on behalf of such Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth for use in the Time of Sale Registration Statement and Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) The Registration Statementis, when it became effectiveand on the Closing Date and on the Option Closing Date will be, did not contain andtrue, as amended or supplementedcorrect, if applicableand complete, will not contain any 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, (ii) the Time of Sale Prospectus and does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at on the Closing Date (as defined in Section 5), and on the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, Option Closing Date will not, contain any untrue statement of a material fact or omit to state a any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, such information not misleading and (iii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, provided that such representations and warranties set forth in this subsection (g) apply only to statements or omissions made in reliance upon and in conformity with Shareholder Information (defined below) relating to the Selling Shareholder furnished in writing by or on behalf of the Selling Shareholder expressly for use in the Registration Statement, the Prospectus, the Time of Sale Prospectus and any amendments or supplements theretomisleading.
(i) None of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea, Sudan and Syria).
(ii) The Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past five years, the Selling Shareholder has not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(a) None of the Selling Shareholder or its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (b) the Selling Shareholder and its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(v) The operations of the Selling Shareholder and its subsidiaries are and have been conducted at all times in material compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Selling Shareholder, threatened.
Appears in 1 contract
Representations and Warranties of the Selling Shareholder. The Selling Shareholder hereby represents and warrants to and agrees with each Underwriter as of the Underwriters thatdate hereof, as of the Firm Shares Closing Date and, if the Selling Shareholder is selling Option Shares, as of each such Option Shares Closing Date (if any), as follows:
(a) This Agreement has and the Lock-Up Agreement, have each been duly authorized, executed and delivered by or on behalf the Selling Shareholder and, assuming due authorization, execution and delivery by the other parties thereto, constitutes the valid and legally binding agreement of the Selling Shareholder, enforceable against the Selling Shareholder in accordance with their respective terms.
(b) The execution and delivery by the Selling Shareholder of, of this Agreement and the performance by the Selling Shareholder of its obligations underunder this Agreement, this Agreement including the sale and delivery of the Shares to be sold by the Selling Shareholder and the consummation of the transactions contemplated herein and compliance by the Selling Shareholder with its obligations hereunder, do not and will not not, whether with or without the giving of notice or the passage of time or both, (i) violate or contravene any provision of applicable law, or the certificate of incorporation charter or by-laws or other organizational instrument of the Selling Shareholder (Shareholder, if the Selling Shareholder is a corporation)applicable, or any applicable law, statute, regulation, or filing or any agreement or other instrument binding upon the Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder, (ii) conflict with or constitute a breach of, or default under, or result in the creation or imposition of any tax, lien, charge or encumbrance upon the shares to be sold by the Selling Shareholder except, in each case, where or any such contravention would not reasonably be expected to have a material adverse effect on the ability property or assets of the Selling Shareholder pursuant to perform its obligations hereunder, and no the terms of any agreement or instrument to which the Selling Shareholder is a party or by which the Selling Shareholder may be bound or to which any of the property or assets of the Selling Shareholder is subject or (iii) require any consent, approval, authorization or order of, of or qualification with, registration or filing with any court or governmental agency or body or agency is required for the performance by the Selling Shareholder of its obligations under this Agreement of the Selling Shareholderhaving jurisdiction over it, except such as have been obtained and made under the Securities Act and may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares, except where the failure to obtain such consent, approval, authorization Shares which have been or order of, or qualification with, any governmental body or agency would not reasonably will be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereundereffected in accordance with this Agreement.
(c) The Selling Shareholder has, and on the Firm Shares Closing Date and the Option Shares Closing Date, if applicable, will have, valid and marketable title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, to the Shares to be sold by the Selling Shareholder free and clear of all any lien, claim, security interests, claims, liens, equities interest or other encumbrances encumbrance, including, without limitation, any restriction on transfer, except as otherwise described in the Registration Statement and Prospectus.
(d) The Selling Shareholder has, and on the Firm Shares Closing Date and the Option Shares Closing Date, if applicable, will have, full legal right right, power and powerauthority, and all authorization and any approval required by law, to enter into this Agreement and to sell, assign, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such Shares.
(d) [Reserved]the manner provided by this Agreement.
(e) Upon delivery of and payment for the Shares to be sold by the 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 each Underwriter has no notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (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 UCCclaim, the several Underwriters will acquire a receive 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, marketable title to such Shares may be asserted against the Underwriters with respect to such free and clear of any lien, claim, mortgage, pledge, security entitlement; for purposes of this representation, the Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede interest or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (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 UCCother encumbrance.
(f) The All information relating to the Selling Shareholder is not prompted furnished in writing by any information concerning the Company or its subsidiaries which is not set forth Selling Shareholder expressly for use in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) The Registration Statement, when it became effectiveProspectus and any Issuer Free Writing Prospectus is, did not contain andand on each Closing Date will be, as amended or supplementedtrue, if applicablecorrect, will not contain any 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 misleadingand complete, (ii) the Time of Sale Prospectus and does not, and at the time of on each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state any material fact necessary to make such information not misleading.
(g) The Selling Shareholder has reviewed the Registration Statement, Prospectus and any Issuer Free Writing Prospectus and, although the Selling Shareholder has not independently verified the accuracy or completeness of all the information contained therein, nothing has come to the attention of the Selling Shareholder that would lead the Selling Shareholder to believe that: (i) on the Effective Date, the Registration Statement contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein in order to make the statements made therein not misleading, (ii) on the Effective Date, the Prospectus contained and, on each Closing Date contains, untrue statements of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading misleading, and (iii) as of the Prospectus does not contain andApplicable Time, as amended the General Disclosure Package, or supplementedany individual Issuer Free Writing Prospectus, if applicablewhen considered together with the General Disclosure Package, will not contain any included untrue statement statements of a material fact or omit omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, provided not misleading, provided, that such representations the Selling Shareholder makes no representation and warranties set forth in this subsection (g) apply only warranty with respect to any statements or omissions made in reliance upon and in conformity with Shareholder Information the Underwriter Information.
(defined belowh) relating to The sale of Shares by the Selling Shareholder furnished in writing pursuant to this Agreement is not prompted by or on behalf of the Selling Shareholder expressly for use Shareholder’s knowledge of any material information concerning the Company or any of its subsidiaries that is not set forth in the Registration Statement, General Disclosure Package and the Prospectus, the Time of Sale Prospectus and any amendments or supplements thereto.
(i) None The Selling Shareholder has not taken, 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 any security of the Company to facilitate the sale or resale of the Shares.
(j) The Selling Shareholder has no actual knowledge that any representation or warranty of the Company set forth in Section 2 above is untrue or inaccurate in any material respect, is familiar with the General Disclosure Package and Registration Statement and has no actual knowledge of any material fact, condition or information not disclosed in the General Disclosure Package and the Prospectus or any supplement thereto which has adversely affected or may adversely affect the businesses of the Company or any of its subsidiaries.
(k) The Selling Shareholder has not prepared, orused or referred to, to the knowledge nor will it prepare, use or refer to, any “free writing prospectus” (as defined in Rule 405 of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea, Sudan and SyriaRules).
(iil) The Selling Shareholder will nothas the power to submit, directly and pursuant to Section 14 of this Agreement has legally, validly, effectively and irrevocably submitted, to the jurisdiction of any U.S. federal or indirectlyNew York state court located in the Borough of Manhattan in The City of New York and has the power to designate, use appoint and empower, and pursuant to Section 14 of this Agreement, has legally, validly and effectively designated, appointed and empowered an agent for service of process in any suit or proceeding based on or arising under this Agreement in any U.S. federal or New York state court located in the proceeds Borough of Manhattan in The City of New York, and service of process effected in the manner set forth in this Agreement, assuming validity under the laws of the offeringState of New York, or lend, contribute or otherwise make available such proceeds will be effective under the laws of Luxembourg to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at confer valid personal jurisdiction over the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise)Selling Shareholder.
(iii) For the past five years, the Selling Shareholder has not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(am) None of the Selling Shareholder or its subsidiariessubsidiaries or affiliates, or any director, officer, or employee thereof, or, to the knowledge Selling Shareholder’s knowledge, any agent or representative of the Selling Shareholder or of any of its subsidiaries or affiliates or any other person associated with or acting on behalf of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof has : (i) have taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official government official (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (bii) the Selling Shareholder and its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws; or (iii) have made any other unlawful payment.
(vn) The Selling Shareholder conducts, and has conducted at all times, its business in compliance with applicable anti-corruption laws, including the FCPA or the U.K. Bxxxxxx Xxx 0000, each as amended, or similar law of any relevant jurisdiction, or the rules or regulations thereunder and has instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein. No part of the proceeds of the offering will be used, directly or indirectly, in violation of the FCPA or the U.K. Bxxxxxx Xxx 0000, each as may be amended, or similar law of any other relevant jurisdiction, or the rules or regulations thereunder.
(o) The operations of the Selling Shareholder and its subsidiaries are and have been conducted at all times in material compliance with all applicable Anti-financial recordkeeping and reporting requirements of the Money Laundering Laws, Laws and no the Selling Shareholder has instituted and maintains policies and procedures designed to ensure continued compliance with such laws. No action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending orpending, or to the best knowledge of the Selling Shareholder, threatened.
(p) Neither the Selling Shareholder nor, to the knowledge of the Selling Shareholder, threatenedany director, officer, agent, employee or affiliate of the Selling Shareholder (i) is, or is controlled or 50% or more owned in the aggregate by or is acting on behalf of, one or more Sanctioned Persons, (ii) is located, organized or resident in a Sanctioned Country or (iii) will, directly or indirectly, use the proceeds of this offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, in any manner that would result in a violation of any Sanctions by, or could result in the imposition of Sanctions against, any individual or entity (including any individual or entity participating in the offering, whether as underwriter, advisor, investor or otherwise). The Selling Shareholder has not engaged in any dealings or transactions with or for the benefit of a Sanctioned Person, or with or in a Sanctioned Country, in the preceding three (3) years, nor does the Selling Shareholder have any plans to engage in dealings or transactions with or for the benefit of a Sanctioned Person, or with or in a Sanctioned Country.
(q) The Selling Shareholder represents and warrants that it is not (i) an employee benefit plan subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), (ii) a plan or account subject to Section 4975 of the Internal Revenue Code of 1986, as amended or (iii) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R. 2510.3-101, or otherwise.
Appears in 1 contract
Samples: Underwriting Agreement (Corporacion America Airports S.A.)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder hereby represents and warrants to the Company and agrees with each of the Underwriters thatUnderwriter as follows:
(a) The Selling Shareholder has caused certificates for the number of Shares to be sold by the Selling Shareholder hereunder to be delivered to the Company (in such capacity, the "Custodian"), endorsed in blank or with blank stock powers duly executed, with a signature appropriately guaranteed, such certificates to be held in custody by the Custodian for delivery, pursuant to the provisions of this Agreement and an agreement dated on or about the date hereof between the Custodian and the Selling Shareholder (the "Custody Agreement").
(b) The Selling Shareholder has granted an irrevocable power of attorney (the "Power of Attorney") to the Company and Craxx Xxxxx, xn behalf of the Selling Shareholder, to execute and deliver this Agreement and any other document necessary or desirable in connection with the transactions contemplated hereby and to deliver the shares to be sold by the Selling Shareholder pursuant hereto.
(c) This Agreement, the Custody Agreement, the Power of Attorney and the Lock-Up Agreement has have each been duly authorized, executed and delivered by or on behalf of the Selling Shareholder and, assuming due authorization, execution and delivery by the other parties hereto, each constitutes the valid and legally binding agreement of the Selling Shareholder, enforceable against the Selling Shareholder in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights generally and by general equitable principals.
(bd) The execution and delivery by the Selling Shareholder of, of this Agreement and the performance by the Selling Shareholder of its obligations under, under this Agreement (i) will not contravene any provision of applicable law, statute, rule or the certificate of incorporation or by-laws of the Selling Shareholder (if the Selling Shareholder is a corporation), regulation or any agreement or other instrument binding upon the Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder exceptShareholder, in each case, where any such contravention would (ii) does not reasonably be expected to have a material adverse effect require on the ability part of the Selling Shareholder to perform its obligations hereunder, and no any consent, approval, authorization or order of, of or qualification with, registration or filing with any court or governmental agency or body or agency is required for the performance by the Selling Shareholder of its obligations under this Agreement of the Selling Shareholderhaving jurisdiction over it, except such as may be required by the securities or Blue Sky laws of the various states or other jurisdiction in connection with the offer and sale of the SharesShares which have been or will be effected in accordance with this Agreement, except where and (iii) will not result in the failure to obtain such consentcreation or imposition of any lien, approval, authorization charge or order of, encumbrance upon any property or qualification with, any governmental body or agency would not reasonably be expected to have a material adverse effect on the ability assets of the Selling Shareholder pursuant to perform its obligations hereunderthe terms of any agreement or instrument to which the Selling Shareholder is a party or by which the Selling Shareholder may be bound or to which any of the property or assets of the Selling Shareholder is subject.
(ce) The Selling Shareholder has, and on the each Closing Date on which Shares to be sold by the Selling Shareholder pursuant to this Agreement will have, valid and marketable title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, to the Shares to be sold by the Selling Shareholder on such Closing Date, free and clear of all any lien, claim, security interests, claims, liens, equities interest or other encumbrances encumbrance, including, without limitation, any restriction on transfer, except as otherwise described in the Registration Statement and the legal right and powerProspectus.
(f) The Selling Shareholder has, and all authorization on each Closing Date on which Shares to be sold by the Selling Shareholder pursuant to this Agreement will have, full legal right, power and authorization, and any approval required by law, to enter into this Agreement and to sell, assign, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement on such Closing Date in respect of such Sharesthe manner provided by this Agreement.
(d) [Reserved].
(eg) Upon delivery of and payment for the Shares to be sold by the Selling Shareholder on any Closing Date 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 New York Uniform Commercial Code (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 several Underwriters will acquire a receive 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, marketable title to such Shares may be asserted against the Underwriters with respect free and clear of any lien, claim, security interest or other encumbrance.
(h) All information relating to such security entitlement; for purposes of this representation, the Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered furnished in writing by the Selling Shareholder expressly for use in the name of Cede or another nominee designated Registration Statement and Prospectus is, and on each Closing Date on which Shares to be sold by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (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.
(f) The Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) The Registration StatementAgreement will be, when it became effectivetrue, did not contain andcorrect, as amended or supplementedand complete, if applicable, will not contain any 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, (ii) the Time of Sale Prospectus and does not, and at the time of on each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state any material fact necessary to make such information not misleading.
(i) The Selling Shareholder has reviewed the Registration Statement and Prospectus and, although the Selling Shareholder has not independently verified the accuracy or completeness of all the information contained therein, nothing has come to the attention of the Selling Shareholder that would lead the Selling Shareholder to believe that (i) on the Effective Date, the Registration Statement contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein in order to make the statements made therein not misleading and (ii) on the Effective Date, the Prospectus contained and, on each Closing Date contains, no untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, misleading.
(j) The sale of Shares by the Selling Shareholder pursuant to this Agreement is not misleading and (iii) prompted by the Prospectus does Selling Shareholder's knowledge of any material information concerning the Company or the Subsidiary which is not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, provided that such representations and warranties set forth in this subsection (g) apply only to statements or omissions made in reliance upon and in conformity with Shareholder Information (defined below) relating to the Selling Shareholder furnished in writing by or on behalf of the Selling Shareholder expressly for use in the Registration Statement, the Prospectus, the Time of Sale Prospectus and any amendments or supplements thereto.
(i) None of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea, Sudan and Syria).
(iik) The Selling Shareholder has not taken and will notnot take, directly or indirectly, use the proceeds any action designed to or that might reasonably be expected to cause or result in stabilization or manipulation of the offering, price of any security of the Company to facilitate the sale or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business resale of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise)Shares.
(iiil) For the past five years, the The Selling Shareholder has not knowingly engaged in, no actual knowledge that any representation or warranty of the Company set forth in Section 4 above is not now knowingly engaged in, and will not engage in, any dealings untrue or transactions with any Person, or inaccurate in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctionsmaterial respect.
(am) None The representations and warranties of the Selling Shareholder or its subsidiariesin the Custody Agreement are, or, and on each Closing Date on which Shares to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (b) be sold by the Selling Shareholder pursuant to this Agreement will be, true and its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption lawscorrect.
(v) The operations of the Selling Shareholder and its subsidiaries are and have been conducted at all times in material compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Selling Shareholder, threatened.
Appears in 1 contract
Samples: Underwriting Agreement (Talx Corp)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement and the Letter of Transmittal and Custody Agreement signed by the Selling Shareholder and Wachovia Bank, N.A., as Custodian, relating to the deposit of the Shares to be sold by the Selling Shareholder (the "Custody Agreement") and the consummation of the transactions contemplated thereby will not contravene any provision of applicable law, or the certificate Last Will and Testament of incorporation or by-laws of Xxxxxx X. xxXxxx, by which the Selling Shareholder (if the Selling Shareholder is a corporation)was established, or any agreement or other instrument binding upon the Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder except, in each case, where any such contravention would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereunderShareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Selling Shareholder of its obligations under this Agreement of or the Selling ShareholderCustody Agreement, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares, except where the failure to obtain such consent, approval, authorization or order of, or qualification with, any governmental body or agency would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereunder.
(c) The Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “"security entitlement” " within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares to be sold by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and the Custody Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such Shares.
(d) [Reserved]The Custody Agreement has been duly authorized, executed and delivered by the Selling Shareholder and is a valid and binding agreement of the Selling Shareholder.
(e) Upon payment for Delivery of the Shares to be sold by the Selling Shareholder and payment therefor pursuant to this Agreement, delivery of Agreement will pass valid title to 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 free 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 clear of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (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 UCCNew York Uniform Commercial Code, to each Underwriter who has purchased such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes without notice of this representation, the 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 certificate of incorporation, bylaws and applicable law, (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 UCCan adverse claim.
(f) The Selling Shareholder has not taken and will not take, directly or indirectly, any action which is not prompted by designed to or which has constituted or which might reasonably be expected to cause or result in the stabilization or manipulation of the price of any information concerning security of the Company to facilitate the sale or its subsidiaries which is not set forth in resale of the Time of Sale Prospectus to sell its Shares pursuant to this AgreementShares.
(g) (i) The To the best of the knowledge of the Selling Shareholder, after due inquiry, the Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any 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, (ii) the Time of Sale Prospectus does not, Registration Statement and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectuscomply and, as then amended or supplemented by the Companysupplemented, if applicable, will not, contain any untrue statement of a comply in all material fact or omit to state a material fact necessary to make respects with the statements therein, in Securities Act and the light applicable rules and regulations of the circumstances under which they were made, not misleading Commission thereunder and (iii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, provided not misleading, except that such the representations and warranties set forth in this subsection (gparagraph 2(g) do not apply only to statements or omissions made in reliance the Registration Statement or the Prospectus based upon and in conformity with Shareholder Information (defined below) information relating to any Underwriter furnished to the Selling Shareholder furnished Company in writing by or on behalf of the Selling Shareholder such Underwriter through you expressly for use in the Registration Statement, the Prospectus, the Time of Sale Prospectus and any amendments or supplements theretotherein.
(ih) None the statements in the Base Prospectus under the caption "Xxxxxx X. xxXxxx Testamentary Trust," and in the Prospectus Supplement under the captions "Summary--Xxxxxx X. xxXxxx Testamentary Trust" and "Selling Shareholder" insofar as such statements constitute summaries of the Selling Shareholder legal matters, documents or any of its subsidiariesproceedings referred to therein, or, to fairly present the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea, Sudan and Syria).
(ii) The Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past five years, the Selling Shareholder has not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(a) None of the Selling Shareholder or its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (b) the Selling Shareholder and its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(v) The operations of the Selling Shareholder and its subsidiaries are and have been conducted at all times in material compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries information called for with respect to such legal matters, documents and proceedings and fairly summarize the Anti-Money Laundering Laws is pending or, matters referred to the knowledge of the Selling Shareholder, threatenedtherein.
Appears in 1 contract
Samples: Underwriting Agreement (Dupont Alfred I Testamentary Trust)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to to, and agrees with with, each of the several Underwriters and the Company that:
(a) This The Selling Shareholder has full right, power and authority to enter into this Agreement, the Power of Attorney and the Custody Agreement has (as hereinafter defined) and to sell, assign, transfer and deliver to the Underwriters the Shares to be sold by the Selling Shareholder hereunder; and the execution and delivery of this Agreement, the Power of Attorney and the Custody Agreement have been duly authorized, executed and delivered authorized by or on behalf all necessary action of the Selling Shareholder.
(b) The execution and delivery by the Selling Shareholder ofhas duly executed and delivered this Agreement, the Power of Attorney and the Custody Agreement, and each constitutes the performance by the Selling Shareholder of its obligations under, this Agreement will not contravene any provision of applicable law, or the certificate of incorporation or by-laws valid and binding agreement of the Selling Shareholder (if enforceable against the Selling Shareholder is a corporation)in accordance with its terms, subject, as to enforcement, to applicable bankruptcy, insolvency, reorganization and moratorium laws and other laws relating to or any agreement or other instrument binding upon affecting the Selling Shareholder or any judgment, order or decree enforcement of any governmental body, agency or court having jurisdiction over the Selling Shareholder except, in each case, where any such contravention would not reasonably be expected creditors' rights generally and to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereunder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Selling Shareholder of its obligations under this Agreement of the Selling Shareholder, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares, except where the failure to obtain such consent, approval, authorization or order of, or qualification with, any governmental body or agency would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereundergeneral equitable principles.
(c) The Selling Shareholder hasNo consent, and on the Closing Date will haveapproval, valid title toauthorization, order or declaration of or from, or a valid “security entitlement” within registration, qualification or filing with, any court or governmental agency or body is required for the meaning sale of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares to be sold by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect the consummation of such Shares.the transactions contemplated by this Agreement, the Power of Attorney or the Custody
(d) [Reserved]The sale of the Shares to be sold by such Selling Shareholder and the performance of this Agreement, the Power of Attorney and the Custody Agreement and the consummation of the transactions herein and therein contemplated will not conflict with, or (with or without the giving of notice or the passage of time or both) result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which the Selling Shareholder is a party or to which any of its properties or assets is subject, nor will such action conflict with or violate any provision of the charter or bylaws or other governing instruments of the Selling Shareholder, if any, or any statute, rule or regulation or any order, judgment or decree of any court or governmental agency or body having jurisdiction over the Selling Shareholder or any of the Selling Shareholder's properties or assets.
(e) Upon payment for The Selling Shareholder has, and at the Closing Time or, at the Date of Delivery, as the case may be, the Selling Shareholder will have, good and valid title to the Shares to be sold by the Selling Shareholder pursuant to this Agreementhereunder, free and clear of all liens, security interests, pledges, charges, encumbrances, defects, shareholders' agreements, voting trusts, equities or claims of any nature whatsoever; and, upon delivery of such SharesShares against payment therefor as provided herein, 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 good 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 New York Uniform Commercial Code (the “UCC”)) valid title to such Shares), (A) DTC shall be a “protected purchaser” free and clear of such Shares within the meaning all liens, security interests, pledges, charges, encumbrances, defects, shareholders' agreements, voting trusts, equities or claims of Section 8-303 of the UCCany nature whatsoever, (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, the 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 certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries pass to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCCUnderwriters.
(f) The Selling Shareholder is has not prompted by (i) taken, directly or indirectly, any information concerning action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any security of the Company to facilitate the sale or its subsidiaries which is not set forth in resale of the Time Shares or (ii) since the filing of Sale Prospectus the Registration Statement (A) sold, bid for, purchased or paid anyone any compensation for soliciting purchases of, the Shares or (B) paid or agreed to sell its Shares pursuant pay to this Agreementany person any compensation for soliciting another to purchase any other securities of the Company.
(g) When any Preliminary Prospectus was filed with the Commission it (i) The Registration Statementcontained all statements required to be stated therein in accordance with, when it became effectiveand complied in all material respects with the requirements of, the 1933 Act and the rules and regulations of the Commission thereunder, and (ii) did not contain and, as amended or supplemented, if applicable, will not contain include any 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, (ii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will 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 misleading. When the Registration Statement or any amendment thereto or any 462(b) Registration Statement or any amendment thereto was or is declared effective and at the Closing Time or the Date of Delivery, as the case may be, it (i) contained or will contain all statements required to be stated therein in accordance with, and complied or will comply in all material respects with the requirements of, the 1933 Act and the rules and regulations of the Commission thereunder and (iiiii) the Prospectus does did not contain and, as amended or supplemented, if applicable, will not contain include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading. When the Prospectus or any amendment or supplement thereto is filed with the Commission pursuant to Rule 424(b) (or, if the Prospectus or such amendment or supplement is not required to be so filed, when the Registration Statement or the amendment thereto containing such amendment or supplement to the Prospectus was or is declared effective), and at the Closing Time or the Date of Delivery, as the case may be, the Prospectus, as amended or supplemented at any such time, (i) contained or will contain all statements required to be stated therein in accordance with, and complied or will comply in all material respects with the requirements of, the 1933 Act and the rules and regulations of the Commission thereunder and (ii) did not or will not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, provided that such representations and warranties set forth in not misleading. The foregoing provisions of this subsection paragraph (g) do not apply only to statements or omissions made in any Preliminary Prospectus, the Registration Statement, any 462(b) Registration Statement or any amendment thereto or the Prospectus or any amendment or supplement thereto in reliance upon and in conformity with written information furnished to the Company by any Underwriter through you specifically for use therein. In order to document the Underwriters' compliance with the reporting and withholding provisions of the Internal Revenue Code of 1986, as amended, with respect to the transactions herein contemplated, the Selling Shareholder Information agrees to deliver to you prior to or at the Closing Time (defined belowas hereinafter defined) relating a properly completed and executed United States Treasury Department form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof). The Selling Shareholder represents and warrants that certificates in negotiable form representing all of the Shares to be sold by such Selling Shareholder hereunder have been placed in custody under a custody agreement (the "Custody Agreement"), in the form heretofore furnished to and approved by you, duly executed and delivered by such Selling Shareholder to [INSERT NAME OF CUSTODIAN], as custodian (the "Custodian"), and that such Selling Shareholder has duly executed and delivered a Power of Attorney (the "Power of Attorney"), in the form heretofore furnished to and approved by you, appointing [INSERT NAME(S) OF ATTORNEYS-IN-FACT] as such Selling Shareholder's attorneys-in-fact (the "Attorneys-in-Fact") with authority to execute and deliver this Agreement on behalf of such Selling Shareholder, to determine the purchase price to be paid by the Underwriters to the Selling Shareholders as provided in Section 3 hereof, to authorize the delivery of the Shares to be sold by such Selling Shareholder furnished in writing by or hereunder and otherwise to act on behalf of such Selling Shareholder in connection with the transactions contemplated by this Agreement and the Custody Agreement. The Selling Shareholder specifically agrees that the Shares represented by the certificates held in custody for such Selling Shareholder under the Custody Agreement are subject to the interests of the Underwriters hereunder, and that the arrangements made by such Selling Shareholder for such custody, and the appointment by such Selling Shareholder of the Attorneys-in-Fact by the Power of Attorney, are irrevocable. The Selling Shareholder specifically agrees that the obligations of the Selling Shareholder expressly for use hereunder shall not be terminated by operation of law, whether by the death or incapacity of Selling Shareholder or, in the Registration Statementcase of an estate or trust, by the Prospectus, the Time of Sale Prospectus and any amendments death or supplements thereto.
(i) None of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject incapacity of any Sanctions, or
(B) located, organized executor or resident in a country trustee or territory that is the subject of Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea, Sudan and Syria).
(ii) The Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time termination of such funding estate or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past five years, the Selling Shareholder has not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Persontrust, or in any country the case of a partnership or territorycorporation, that at by the time dissolution of the dealing such partnership or transaction is or was the subject of Sanctions.
(a) None of the Selling Shareholder or its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representativecorporation, or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of by the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation occurrence of any applicable anti-corruption laws; (b) the Selling Shareholder and its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption lawsother event.
(v) The operations of the Selling Shareholder and its subsidiaries are and have been conducted at all times in material compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Selling Shareholder, threatened.
Appears in 1 contract
Samples: Underwriting Agreement (Netbank Inc)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder hereby represents and warrants to and agrees with each of the Underwriters thatUnderwriter as follows:
(a) This The Selling Shareholder has delivered an irrevocable exercise notice with respect to the Warrant to the Company, and has delivered or caused to be delivered to Citibank, N.A. (the "Custodian") a blank stock power with respect to the Shares to be sold by the Selling Shareholder, duly executed and with a signature appropriately guaranteed, and a certificate representing such Shares, to be held in custody by the Custodian for delivery pursuant to the provisions of this Agreement and an agreement dated March 13, 2000 between the Custodian and the Selling Shareholder (the "Custody Agreement").
(b) The Selling Shareholder has granted an irrevocable power of attorney (the "Power of Attorney") to Arthxx X. xxx Pradx and Rinse de Jong, on behalf of the Selling Shareholder, to execute and deliver this Agreement and any other document necessary or desirable in connection with the transactions contemplated hereby and to deliver the Shares to be sold by the Selling Shareholder pursuant hereto.
(c) Each of this Agreement, the Custody Agreement, the Power of Attorney and the Lock-Up Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.Shareholder and, assuming due authorization,
(bd) The execution and delivery by the Selling Shareholder of, of this Agreement and the performance by the Selling Shareholder of its obligations underunder this Agreement, this Agreement does not and will not (i) violate or contravene any provision of applicable law, statute, regulation or the certificate of incorporation or by-laws of the Selling Shareholder (if the Selling Shareholder is a corporation), filing or any agreement or other instrument binding upon the Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder except, in each case, where Shareholder; (ii) require any such contravention would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereunder, and no consent, approval, authorization or order of, of or qualification with, registration or filing with any court or governmental agency or body or agency is required for the performance by the Selling Shareholder of its obligations under this Agreement of the Selling Shareholderhaving jurisdiction over it, except such as may be required by the securities or Blue Sky blue sky laws of the various states in connection with the offer and sale of the SharesShares which have been or will be effected in accordance with this Agreement; or (iii) result in the creation or imposition of any lien, except where charge or encumbrance upon the failure Shares to obtain such consent, approval, authorization be sold by the Selling Shareholder pursuant to the terms of any agreement or order of, instrument to which the Selling Shareholder is a party or qualification with, by which the Selling Shareholder may be bound or to which any governmental body of the property or agency would not reasonably be expected to have a material adverse effect on the ability assets of the Selling Shareholder to perform its obligations hereunderis subject.
(ce) The Selling Shareholder hasis the holder of and has the right to exercise the Warrant. On the Firm Shares Closing Date, the Selling Shareholder will have valid and on the Closing Date will have, valid marketable title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, to the Shares to be sold by the Selling Shareholder free and clear of all any lien, claim, security interests, claims, liens, equities interest or other encumbrances encumbrance, including, without limitation, any restriction on transfer.
(f) On the Firm Shares Closing Date, the Selling Shareholder will have full legal right, power and the legal right and powerauthorization, and all authorization and any approval required by law, to enter into this Agreement and to sell, assign, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such Sharesthe manner provided by this Agreement.
(d) [Reserved].
(eg) Upon delivery of and payment for the Shares to be sold by the 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 New York Uniform Commercial Code (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 several Underwriters will acquire a receive 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, marketable title to such Shares may be asserted against the Underwriters with respect to such free and clear of any lien, claim, security entitlement; for purposes of this representation, the Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede interest or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (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 UCCother encumbrance.
(fh) The Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not responses set forth in the Time of Sale questionnaire completed by the Selling Shareholder at the Company's request in connection with this offering, the information regarding the Selling Shareholder in the Prospectus in the Section entitled "Principal and Selling Shareholders," and any other information relating to sell its Shares pursuant to this Agreement.
the Selling Shareholder furnished in writing by the Selling Shareholder expressly for use in the Registration Statement and Prospectus (gcollectively, the "Selling Shareholder Information") (i) The Registration Statementis, when it became effectiveand on each Closing Date will be, did not contain andtrue, as amended or supplementedcorrect, if applicableand complete, will not contain any 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, (ii) the Time of Sale Prospectus and does not, and at the time of on each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, such information not misleading and (iii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, provided that such representations and warranties set forth in this subsection (g) apply only to statements or omissions made in reliance upon and in conformity with Shareholder Information (defined below) relating to the Selling Shareholder furnished in writing by or on behalf of the Selling Shareholder expressly for use in the Registration Statement, the Prospectus, the Time of Sale Prospectus and any amendments or supplements theretomisleading.
(i) None of The principal reason for the participation by the Selling Shareholder or any of its subsidiaries, or, in the proposed public offering is to the knowledge permit diversification of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof, is a Person that is, or is owned or controlled by one or more Persons that are:'s investments;
(A) the subject of any Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea, Sudan and Syria).
(iij) The Selling Shareholder has not taken and will notnot take, directly or indirectly, use the proceeds any action designed to or that might reasonably be expected to cause or result in stabilization or manipulation of the offering, price of any security of the Company to facilitate the sale or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business resale of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise)Shares.
(iiik) For the past five years, the Selling Shareholder has not knowingly engaged in, is not now knowingly engaged in, The representations and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(a) None warranties of the Selling Shareholder or its subsidiaries, or, to in the knowledge Power of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (b) the Selling Shareholder and its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(v) The operations of the Selling Shareholder and its subsidiaries are and have been conducted at all times in material compliance with all applicable Anti-Money Laundering LawsAttorney are, and no actionon each Closing Date will be, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Selling Shareholder, threatenedtrue and correct.
Appears in 1 contract
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The deposit of the Underlying Shares by the Selling Shareholder with the Depositary against issuance of the ADRs evidencing the ADSs to be delivered by the Selling Shareholder and the execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement will not contravene any provision of applicable law, or the certificate of incorporation or by-laws articles of association (vedtekter) of the Selling Shareholder (if the Selling Shareholder is a corporation)Shareholder, or any agreement or other instrument binding upon the Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder except, in each case, where any such contravention would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereunderShareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Selling Shareholder of its obligations under this Agreement of the Selling ShareholderAgreement, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares, except where the failure to obtain such consent, approval, authorization or order of, or qualification with, any governmental body or agency would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereunderSecurities.
(c) The Selling Shareholder has, beneficially owns and on the Closing Date will have, beneficially own or has and will have on the Closing Date a valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Underlying Shares to be represented by the ADSs to be sold by the Selling Shareholder hereunder, free and clear of all security interests, claims, liens, equities or other encumbrances encumbrances; and the Selling Shareholder has the legal right and power, and all authorization and approval required by law, to enter into the Deposit Agreement and to deposit the Underlying Shares with the Depositary against the issuance of the ADRs evidencing the ADSs to be delivered by the Selling Shareholder.
(d) The Selling Shareholder has the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares Securities to be sold by the Selling Shareholder or a security entitlement in respect of such Shares.
(d) [Reserved]Securities.
(e) Upon payment for The ADSs representing the Underlying Shares to be sold by were deposited in accordance with the Selling Shareholder pursuant to this Agreementprovisions of the Deposit Agreement and were duly issued, and, upon the sale and delivery of such Shares, as directed the ADRs to the person(s) procured by the Underwriters, the person(s) in whose name(s) the ADRs are registered will be entitled to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares rights in the name of Cede or such other nominee and ADSs representing the crediting of such Underlying 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 New York Uniform Commercial Code (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, the Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered specified in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (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 UCCDeposit Agreement.
(f) No stamp, documentary, issuance, registration, transfer, withholding, capital gains, income or other taxes or duties are payable by or on behalf of the Underwriters, the Company or any of its subsidiaries in Norway or to any taxing authority thereof or therein in connection with (i) the execution, delivery or consummation of this Agreement, (ii) the sale and delivery of the Securities to the Underwriters or purchasers procured by the Underwriters, or (iii) the resale and delivery of the Securities by the Underwriters in the manner contemplated herein.
(g) The statements set forth under the heading “Material U.S. Federal Income Tax Considerations” in the Registration Statement or any amendment thereto, to the extent that they relate to matters of U.S. federal income tax law and legal conclusions with respect thereto, other than the statements under the heading “Passive Investment Company Rules” relating to the Company’s status under the U.S. federal income tax rules defining the term “passive foreign investment company”, to the extent that they relate to matters of U.S. federal income tax law and legal conclusions with respect thereto, are accurate and complete in all material respects.
(h) The Selling Shareholder is not prompted Information in the Registration Statement or any amendment thereof constitutes a fair summary of the matters described therein.
(i) The Selling Shareholder has the power to submit, and pursuant to Section 19(a) has, to the extent permitted by law, legally, validly, effectively and irrevocably submitted, to the jurisdiction of the Specified Courts, and has the power to designate, appoint and empower, and pursuant to Section 19(c), has legally, validly and effectively designated, appointed and empowered an agent for service of process in any information concerning suit or proceeding based on or arising under this Agreement in any of the Specified Courts.
(j) The Selling Shareholder has no reason to believe that the representations and warranties of the Company contained in Section 1 are not true and correct, is familiar with the Registration Statement, the Time of Sale Prospectus and the Prospectus and has no knowledge of any material fact, condition or its subsidiaries which is information not set forth disclosed in the Time of Sale Prospectus to sell its Shares pursuant to this Agreementthat has had, or may have, a Material Adverse Effect.
(gk) (i) The Each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) each of the Registration Statement and the ADR Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any 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, (iiiii) the Registration Statement, the ADR Registration Statement and the Prospectus comply and, as amended or supplemented, if applicable, will comply in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder, (iv) the Time of Sale Prospectus does not, and at the time of each sale of the Shares Securities in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (v) each live road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (iiivi) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, provided not misleading, except that such the representations and warranties set forth in this subsection (gparagraph 2(j) do not apply only to statements or omissions made in reliance the Registration Statement or the Prospectus based upon and in conformity with Shareholder Information (defined below) information relating to any Underwriter furnished to the Selling Shareholder furnished Company in writing by or on behalf of the Selling Shareholder such Underwriter through you expressly for use in the Registration Statement, the Prospectus, the Time of Sale Prospectus and any amendments or supplements theretotherein.
(i) None of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof, or other person associated with or acting on behalf of the Selling Shareholder or any of its subsidiaries, is a Person that is, or is owned or controlled by one a Sanctioned Person, or more Persons that are:
(A) the subject of any Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea, Sudan and Syria)Sanctioned Country.
(ii) The Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Sanctioned Person or in any country or territory that, at the time of such funding or facilitation, is the subject of SanctionsSanctioned Countries; or
(B) in any other manner that will result in a violation of Sanctions sanctions laws by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past five years, the Selling Shareholder has and its subsidiaries have not knowingly engaged in, is are not now knowingly engaged in, and will not engage in, any dealings or transactions with any Sanctioned Person, or in any country or territorySanctioned Country, that at other than such limited telecommunications-related transactions with Sanctioned Countries as are permitted under the time terms of the dealing or transaction is or was relevant Sanctions (including, without limitation, those transactions disclosed in VimpelCom’s Annual Report on Form 20-F for the subject of Sanctionsfiscal year ended December 31, 2015).
(iv) (a) None of the Selling Shareholder or its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, affiliate thereof, or affiliate thereof other person associated with or acting on behalf of the Selling Shareholder has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable antiAnti-corruption lawsCorruption Laws; (b) the Selling Shareholder and its subsidiaries have conducted their businesses in compliance with applicable antiAnti-corruption laws Corruption Laws and have instituted and maintained maintained, and will continue to maintain maintain, policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable antiAnti-corruption lawsCorruption Laws.
(v) The operations of the Selling Shareholder and its subsidiaries are and have been conducted at all times in material compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the best knowledge of the Selling Shareholder, threatened.
(m) This Agreement is in proper form under the laws of Norway for the enforcement thereof against the Selling Shareholder, and to ensure the legality, validity, enforceability or admissibility into evidence in Norway of this Agreement.
(n) The courts of Norway would recognize as a valid judgment any final monetary judgment relating to the Agreement obtained against the Selling Shareholder in the courts of the State of New York.
(o) Neither the Selling Shareholder nor any of its subsidiaries nor any of its or their properties or assets has any immunity from the jurisdiction of any court or from any legal process (whether through service or notice, attachment prior to judgment, attachment in aid of execution or otherwise) under the laws of Norway. The irrevocable and unconditional waiver and agreement of the Selling Shareholder contained in Section 19(a) not to plead or claim any such immunity in any legal action, suit or proceeding based on this Agreement is valid and binding under the laws of Norway.
(p) The choice of law of the State of New York as the governing law of this Agreement is a valid choice of law under the laws of Norway and will be honored by the courts of Norway.
Appears in 1 contract
Samples: Underwriting Agreement (Telenor East Holding II As)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriters Underwriter and the Company that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The Neither the execution and delivery by the Selling Shareholder of, and or the performance by the Selling Shareholder of its obligations under, this Agreement nor the consummation of the transactions contemplated hereby or thereby, will not (i) contravene any provision of applicable lawor result in a breach or violation of, or constitute a default under, (A) the certificate memorandum of incorporation or byassociation, bye-laws or other governing documents of the Selling Shareholder (if the Selling Shareholder is not a corporationnatural person), (B) any provision of applicable law or any agreement or other instrument binding upon the Selling Shareholder or any regulation, rule, judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder exceptor any of its properties or (C) any agreement, indenture or other instrument binding upon the Selling Shareholder or to which the Selling Shareholder is a party or to which any of its properties are subject, or (ii) result in each casethe creation or imposition of any lien, where charge, claim or encumbrance upon any such contravention property of the Selling Shareholder, except (other than with respect to clause (i)(A)) as would not reasonably be expected to not, individually or in the aggregate, have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereunderconsummate the transactions contemplated hereby and thereby. Except for permits, consents, approvals and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Selling Shareholder of its obligations under this Agreement of the Selling Shareholder, except such as may be similar authorizations required by the securities or “Blue Sky Sky” or insurance securities laws of the various states certain jurisdictions in connection with the offer and sale of the SharesShares and permits, except where the failure to obtain such consents, approvals and authorizations which have been obtained, no permit, consent, approval, authorization or order ofof any court, governmental agency or qualification with, any governmental body or agency would not reasonably be expected to have a material adverse effect on financial institution is required in connection with the ability of consummation by the Selling Shareholder to perform its obligations hereunderof the transactions contemplated by this Agreement.
(c) The Selling Shareholder hasis, and on the Closing Date will havebe, valid title tothe registered holder of a certificated security representing, or and/or has and will have a valid “security entitlement” within the meaning of Section 8-501 102(a)(7) of the New York Uniform Commercial Code (the “NYUCC”) in respect of, the Shares to be sold by the Selling Shareholder Shareholder, free and clear of all security interests, claims, liens, equities or other encumbrances encumbrances, and the Selling Shareholder’s entry into this Agreement and the Selling Shareholder’s sale, transfer and delivery of the Shares to be sold by the Selling Shareholder have been duly authorized by all necessary organizational action, if any, and the Selling Shareholder has the legal right and power, and all authorization and approval required by law, power to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such Shares. The Shares to be sold by the Selling Shareholder are not subject to any preemptive or similar rights, and the Selling Shareholder has all rights in and full power and authority to transfer such Shares.
(d) [Reserved].
(e) Upon payment for delivery in New York of any certificate or certificates representing the Shares to be sold by the Selling Shareholder pursuant to this AgreementShareholder, delivery of such Shares, as directed properly indorsed in blank by the Underwritersan effective indorsement, to either (i) Cede & Co. (“Cede”) or such other nominee as may be designated by the The Depository Trust Company (“DTC”)) or (ii) the Underwriter purchasing such Shares, registration of and upon payment for such Shares in the name of as contemplated by this Agreement, Cede (or such other nominee and nominee) or the crediting Underwriter, as the case may be, will acquire all of the Selling Shareholder’s rights in such Shares on that the books Selling Shareholder has or has the power to transfer, free of DTC to securities accounts any adverse claim within the meaning of Section 8-102(a)(1) of the Underwriters NYUCC, provided that Cede (assuming that neither DTC nor any or such Underwriter other nominee) or the Underwriter, as the case may be, has no notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”)NYUCC) to such Shares), . Assuming the proper execution of an entitlement order (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 102(a)(8) of the UCC, NYUCC) given by the Selling Shareholder to the securities intermediary (B) under within the meaning of Section 8-501 102(a)(14) of the UCC, NYUCC) maintaining the Underwriters will acquire a valid security entitlement in for the Selling Shareholder with respect to the Shares to be sold by the Selling Shareholder, and assuming that as a result of the execution of such order a security entitlement with respect to such Shares and is properly credited at a securities intermediary (Cwithin the meaning of Section 8-102(a)(14) of the NYUCC) to the account of the Underwriter purchasing such Shares, upon payment for such Shares as contemplated by this Agreement, then no action based on any “an adverse claim”, claim within the meaning of Section 8-102 of the UCC, to such Shares NYUCC may be asserted against the Underwriters Underwriter with respect to such security entitlement; for purposes entitlement to the extent that (i) the Underwriter had no notice of this representation, the 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 certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” adverse claim within the meaning of Section 8-102 105 of the UCC NYUCC and (zii) appropriate entries the Underwriter is the entitlement holder (within the meaning of Section 8-102(a)(8) of the NYUCC) with respect to the accounts of the several Underwriters on the records of DTC will have been made pursuant securities account to the UCCwhich such security entitlement is credited.
(f) The Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any 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, (ii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (iiiii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that such the representations and warranties set forth in this subsection (gparagraph 2(e) apply only are limited to statements or omissions made in reliance upon and in conformity with Shareholder Information (defined below) information relating to the Selling Shareholder furnished to the Company in writing by or on behalf of the Selling Shareholder expressly for use in the Registration Statement, the Prospectus, the Time of Sale Prospectus and or any amendments or supplements thereto.
(i) None of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea, Sudan and Syria).
(ii) The Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past five years, the Selling Shareholder has not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(a) None of the Selling Shareholder or its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (b) the Selling Shareholder and its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(v) The operations of the Selling Shareholder and its subsidiaries are and have been conducted at all times in material compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Selling Shareholder, threatened.
Appears in 1 contract
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement, the Custody Agreement signed by the Selling Shareholder and [ ], as Custodian, relating to the deposit of the Shares to be sold by the Selling Shareholder (the “Custody Agreement”) and the Power of Attorney appointing certain individuals as the Selling Shareholder’s attorney-in-fact to the extent set forth therein, relating to the transactions contemplated hereby and by the Registration Statement (the “Power of Attorney”) will not contravene any provision of applicable law, or the certificate of incorporation or by-laws of the Selling Shareholder (if the Selling Shareholder is a corporation), or any agreement or other instrument binding upon the Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder except, in each case, where any such contravention would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereunderShareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Selling Shareholder of its obligations under this Agreement or the Custody Agreement or Power of Attorney of the Selling Shareholder, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares, except where the failure to obtain such consent, approval, authorization or order of, or qualification with, any governmental body or agency would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereunder.
(c) The Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares to be sold by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement, the Custody Agreement and the Power of Attorney and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such Shares.
(d) [Reserved]The Custody Agreement and the Power of Attorney have been duly authorized, executed and delivered by the Selling Shareholder and are valid and binding agreements of the Selling Shareholder.
(e) Upon payment for the Shares to be sold by the 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 New York Uniform Commercial Code (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, the 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 certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and and
(z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(f) The Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any 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, (ii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (iii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, provided that such representations and warranties set forth in this subsection (g) apply only to statements or omissions made in reliance upon and in conformity with Shareholder Information (defined below) relating to the Selling Shareholder furnished in writing by or on behalf of the Selling Shareholder expressly for use in the Registration Statement, the Prospectus, the Time of Sale Prospectus and any amendments or supplements thereto.
(i) None of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea, Sudan and Syria).
(ii) The Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past five years, the Selling Shareholder has not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(a) None of the Selling Shareholder or its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (b) the Selling Shareholder and its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(v) The operations of the Selling Shareholder and its subsidiaries are and have been conducted at all times in material compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Selling Shareholder, threatened.
Appears in 1 contract
Samples: Underwriting Agreement (Horizon Technology Finance Corp)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriters Underwriter that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The execution and delivery of this Agreement and the sale and delivery of the Shares to be sold by the Selling Shareholder of, and the performance consummation of the transactions contemplated herein and compliance by the Selling Shareholder of with its obligations hereunder (i) do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of or default under, this Agreement will not contravene any provision contract, indenture, mortgage, deed of applicable lawtrust, loan or the certificate of incorporation credit agreement, note, license, lease or by-laws of the Selling Shareholder (if other agreement or instrument to which the Selling Shareholder is a corporation), party or any agreement or other instrument binding upon by which the Selling Shareholder may be bound, or result in the creation or imposition of any tax, lien, charge or encumbrance upon the Shares to be sold by the Selling Shareholder, (ii) nor will such action result in any violation of (A) the provisions of the charter or by-laws or other organizational instrument of the Selling Shareholder, if applicable, or (B) any applicable treaty, law, statute, rule, regulation, judgment, order order, writ or decree of any governmental bodygovernment, agency government instrumentality or court court, domestic or foreign, having jurisdiction over the Selling Shareholder exceptor any of its properties; except in the case of clause (i) or clause (ii)(B), in each casefor such conflicts, where any such contravention breaches, violations or defaults as would not reasonably be expected to have a impair in any material adverse effect on respect the ability consummation of the Selling Shareholder to perform its Shareholder‘s obligations hereunder, hereunder and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Selling Shareholder of its obligations under this Agreement of the Selling Shareholder, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares, except where the failure to obtain such consent, approval, authorization or order of, or qualification with, any governmental body or agency would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereunderthereunder.
(c) The Selling Shareholder has, and on the Closing Date will have, valid good title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, to the Shares to be sold by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a valid security entitlement in respect of such Shares.
(d) [Reserved].
(e) Upon payment of the purchase price for the Shares to be sold by the Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the UnderwritersRepresentatives, to Cede & Co. (“Cede”) or such other nominee as may be designated by the The Depository Trust Company (“DTC”) (unless delivery of such Shares is unnecessary because such Shares are already in possession of Cede or such nominee), registration of such Shares in the name of Cede or such other nominee (unless registration of such Shares is unnecessary because such Shares are already registered in the name of Cede or such nominee), and the crediting of such Shares on the books of DTC to securities accounts (within the meaning of Section 8-501(a) of the Underwriters UCC) of the Underwriters, (assuming that neither DTC nor any such Underwriter has notice of does not have any “adverse claim (claim” within the meaning of Section 8-105 of the New York Uniform Commercial Code then in effect in the State of New York (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, (Bi) under Section 8-501 of the UCC, the Underwriters each Underwriter will acquire a valid “security entitlement entitlement” in respect of such Shares and (Cii) no action (whether framed in conversion, replevin, constructive trust, equitable lien, or other theory) based on any “adverse claim”, ,” within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters any Underwriter with respect to such security entitlement; for purposes of this representation, the Selling Shareholder may assume that when such payment, delivery (if necessary) and crediting occur, (xA) 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 certificate of incorporation, bylaws and applicable law, (yB) DTC will be registered as a “clearing corporation,” within the meaning of Section 8-102 of the UCC and UCC, (zC) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC, (D) to the extent DTC, or any other securities intermediary which acts as “clearing corporation” with respect to the Shares, maintains any “financial asset” (as defined in Section 8-102(a)(9) of the UCC) in a clearing corporation pursuant to Section 8-111 of the UCC, the rules of such clearing corporation may affect the rights of DTC or such securities intermediaries and the ownership interest of the Underwriters, (E) claims of creditors of DTC or any other securities intermediary or clearing corporation may be given priority to the extent set forth in Section 8-511(b) and 8-511(c) of the UCC and (F) if at any time DTC or other securities intermediary does not have sufficient Shares to satisfy claims of all of its entitlement holders with respect thereto then all holders will share pro rata in the Shares then held by DTC or such securities intermediary.
(e) The Selling Shareholder has not taken, and will not take, directly or indirectly, any action which is designed to or which has constituted or would be expected to cause or result in stabilization or manipulation of the price of any equity security, or any securities convertible into or exchangeable for, or that represent a right to receive an equity security or any equity-linked securities of the Company.
(f) The No filing with, or consent, approval, authorization, order, registration, qualification or decree of any arbitrator, court, governmental body, regulatory body, administrative agency or other authority, body or agency, domestic or foreign, is necessary or required for the performance by the Selling Shareholder of its obligations hereunder, or in connection with the sale and delivery of the Shares hereunder or the consummation of the transactions contemplated by this Agreement, except such as have been already obtained or as may be required under the Securities Act and the Securities Act Regulations, the rules of the New York Stock Exchange, state securities laws or the rules of FINRA.
(g) Other than as set forth on Schedule II hereto, the Selling Shareholder has not prepared or had prepared on its behalf or used or referred to, any free writing prospectus, and has not distributed any written materials in connection with the offer or sale of the Shares.
(h) With the exception of Avalon Wealth Management, LLC, Duff & Xxxxxx, Xxxxxxx X’Xxxx + Partners, L.P., TCW Funds Distributors, TCG Securities, LLC and certain limited partners invested in funds affiliated with the Carlyle Group, neither the Selling Shareholder nor, to the Selling Shareholder’s knowledge, any of its affiliates directly, or indirectly through one or more intermediaries, controls, or is not prompted controlled by, or is under common control with any member firm of FINRA or is a person associated with a member (within the meaning of the FINRA By-Laws) of FINRA.
(i) In respect of any statements in or omissions from the Time of Sale Prospectus or the Prospectus made in reliance upon and in conformity with information furnished to the Company by or on behalf of the Selling Shareholder specifically for inclusion therein, the Selling Shareholder hereby makes the same representations and warranties with respect to such information as the Company makes under paragraph 1(b) hereof, it being understood and agreed that such information consists only of its name and any information concerning relating to its holdings of the Company or its subsidiaries which is not Company’s common stock (including for the avoidance of doubt the information set forth in the table and footnotes thereto (except for percentages) in “Selling Stockholder”) as set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreementand the Prospectus (collectively, the “Selling Shareholder Information”).
(g) (ij) The Registration Statement, when it became effective, did not contain and, as amended Selling Shareholder will deliver to the Representatives prior to or supplemented, if applicable, will not contain any 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, (ii) at the Time of Sale Prospectus does not, a properly completed and at the time of each sale executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof). Any certificate signed by any officer of the Shares in connection with Company or any of its subsidiaries delivered to the offering when Underwriters or to counsel for the Prospectus is not yet available to prospective purchasers Underwriters shall be deemed a representation and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented warranty by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (iii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, provided that such representations and warranties set forth in this subsection (g) apply only to statements or omissions made in reliance upon and in conformity with Shareholder Information (defined below) relating Company to the Selling Shareholder furnished in writing Underwriters as to the matters covered thereby; and any certificate signed by or on behalf of the Selling Shareholder expressly as such and delivered to the Underwriters or to counsel for use in the Registration Statement, the Prospectus, the Time of Sale Prospectus Underwriters pursuant to Section 6 hereof shall be deemed a representation and any amendments or supplements thereto.
(i) None of warranty by the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea, Sudan and Syria).
(ii) The Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether Underwriters as underwriter, advisor, investor or otherwise).
(iii) For the past five years, the Selling Shareholder has not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(a) None of the Selling Shareholder or its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (b) the Selling Shareholder and its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption lawsmatters covered thereby.
(v) The operations of the Selling Shareholder and its subsidiaries are and have been conducted at all times in material compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Selling Shareholder, threatened.
Appears in 1 contract
Samples: Underwriting Agreement (Booz Allen Hamilton Holding Corp)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement will not contravene any provision of applicable law, or the certificate of incorporation or by-laws of the Selling Shareholder (if the Selling Shareholder is a corporation)Shareholder, or any agreement or other instrument binding upon the Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder except, in each case, where any such contravention would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereunderShareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Selling Shareholder of its obligations under this Agreement of the Selling ShareholderAgreement, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares, except where the failure to obtain such consent, approval, authorization or order of, or qualification with, any governmental body or agency would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereunder.
(c) The Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares to be sold by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such Shares.
(d) [Reserved].
(e) Upon payment for the Shares to be sold by the 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 New York Uniform Commercial Code (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, the 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 certificate of incorporation, bylaws and applicable law, (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.
(f) The Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(ge) (i1) The the Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any 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, (ii2) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (3) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (iii4) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that such the representations and warranties set forth in this subsection (gparagraph 2(a)(v) apply only are limited to statements or omissions made in reliance upon and in conformity with Shareholder Information (defined below) information relating to the Selling Shareholder furnished to the Company in writing by or on behalf of the Selling Shareholder expressly for use in the Registration Statement, the Time of Sale Prospectus, the Time of Sale Prospectus and or any amendments or supplements thereto.
(i) None of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea, Sudan and Syria).
(iif) The Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds has no reason to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner believe that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past five years, the Selling Shareholder has not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(a) None of the Selling Shareholder or its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (b) the Selling Shareholder and its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering Company contained in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption lawsSection 1 are not true and correct.
(v) The operations of the Selling Shareholder and its subsidiaries are and have been conducted at all times in material compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Selling Shareholder, threatened.
Appears in 1 contract
Samples: Underwriting Agreement (MSCI Inc.)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriters Underwriter that:
(a) The Selling Shareholder now has, and on the Closing Date will have, valid and marketable title to the Shares to be sold by the Selling Shareholder, free and clear of any lien, claim, security interest or other encumbrance, including, without limitation, any restriction on transfer or other defect in title.
(b) The Selling Shareholder now has, and on the Closing Date will have, full legal right, power and authorization, and any approval required by law, to sell, assign transfer and deliver such Shares in the manner provided in this Agreement, and upon delivery of and payment for such Shares hereunder, the several Underwriters will acquire valid and marketable title to such Shares free and clear of any lien, claim, security interest, or other encumbrance.
(c) This Agreement has and the Custody Agreement have been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The execution Shareholder and delivery by are the Selling Shareholder of, valid and the performance by the Selling Shareholder of its obligations under, this Agreement will not contravene any provision of applicable law, or the certificate of incorporation or by-laws binding agreements of the Selling Shareholder (if enforceable against the Selling Shareholder is a corporation)in accordance with their terms, except as enforcement of rights to indemnity and contribution hereunder may be limited by Federal or any agreement state securities laws or other instrument binding upon principles of public policy and subject to the qualification that the enforceability of the Selling Shareholder Shareholder's obligations hereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium, and other laws relating to or any judgment, order affecting creditors' rights generally and by general equitable principles.
(d) Neither the execution and delivery of this Agreement or decree of any governmental body, agency the Custody Agreement by or court having jurisdiction over the Selling Shareholder except, in each case, where any such contravention would not reasonably be expected to have a material adverse effect on the ability behalf of the Selling Shareholder to perform its obligations hereunder, and no nor the consummation of the transactions herein or therein contemplated by or on behalf of the Selling Shareholder requires any consent, approval, authorization or order of, or qualification filing or registration with, any court, regulatory body, administrative agency or other governmental body body, agency or agency is required for the performance by the Selling Shareholder of its obligations under this Agreement of the Selling Shareholder, official (except such as may be required by under the Act or such as may be required under state securities or Blue Sky laws of governing the various states in connection with the offer purchase and sale distribution of the Shares, except where the failure to obtain such consent, approval, authorization ) or order conflicts or will conflict with or constitutes or will constitute a breach of, or qualification withdefault under, or violates or will violate, any governmental body agreement, indenture or agency would not reasonably other instrument to which the Selling Shareholder is a party or by which the Selling Shareholder is or may be expected bound or to have a material adverse effect on the ability which any of the Selling Shareholder to perform its obligations hereunder.
(c) The Selling Shareholder has, and on the Closing Date will have, valid title toShareholder's property or assets is subject, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect ofany statute, the Shares to be sold by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, rule, regulation, ruling, judgment, injunction, order or decree applicable to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect to any property or assets of such Shares.
(d) [Reserved]the Selling Shareholder.
(e) Upon payment for The Registration Statement and the Shares Prospectus, insofar as they relate to be sold by the Selling Shareholder pursuant to this AgreementShareholder, 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 do not 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 New York Uniform Commercial Code (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, the 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 certificate of incorporation, bylaws and applicable law, (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.
(f) The Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any an untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading, .
(iif) The Selling Shareholder does not have any knowledge or any reason to believe that the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when Registration Statement or the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any amendment or supplement thereto) contains any untrue statement of a material fact or omit omits to state a any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, therein not misleading and misleading.
(iiig) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, provided that such The representations and warranties set forth in this subsection (g) apply only to statements or omissions made in reliance upon and in conformity with Shareholder Information (defined below) relating to the Selling Shareholder furnished in writing by or on behalf of the Selling Shareholder expressly for use in the Registration StatementCustody Agreement are, and on the Prospectus, the Time of Sale Prospectus Closing Date and any amendments or supplements theretoOption Closing Date will be, true and correct.
(i) None of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea, Sudan and Syria).
(iih) The Selling Shareholder will nothas not taken, directly or indirectly, use the proceeds any action designed to or that might reasonably be expected to cause or result in stabilization or manipulation of the offeringprice of the Common Stock to facilitate the sale or resale of the Shares, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at except for the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating lock-up arrangements described in the offering, whether as underwriter, advisor, investor or otherwise)Prospectus.
(iii) For the past five years, the Selling Shareholder has not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(a) None of the Selling Shareholder or its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (b) the Selling Shareholder and its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(v) The operations of the Selling Shareholder and its subsidiaries are and have been conducted at all times in material compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Selling Shareholder, threatened.
Appears in 1 contract
